FMLA Violations

As an employee, you’re entitled to certain legal protections following an illness or major life event. Denial of the privileges guaranteed under the Family and Medical Leave Act (FMLA) is a form of workplace discrimination no one should have to put up with.

McCarthy Weisberg Cummings, P.C. offers representation for Pennsylvania FMLA claims from our Harrisburg office. We have a long history of standing up for the rights of workers throughout the state and can provide aggressive representation — both in court and at the bargaining table. Don’t let your employer prevent you from taking care of yourself or your family. Contact our office to speak with a knowledgeable FMLA lawyer today.


What is FMLA

The Family and Medical Leave Act was passed in 1993 and has been enacted in all 50 states. It sets out the specific legal requirements of an employer when one of their staff requests time off due to illness or family issues. FMLA requirements state that qualifying employees are guaranteed up to 12 weeks of unpaid leave during a 12-month period. During that time, they may return to their old position with no loss of salary/benefits or other penalties.

  • FMLA Qualifications — FMLA-protected leave applies only to businesses with a staff of 50 or more employees working within a 75-mile radius. To qualify, employees must have been with the company for 12 months or more, and have worked at least 1,250 hours during that time.
  • Eligible conditions — FMLA leave can be requested following the birth or adoption of a child, during a serious illness or the illness of a family member, and as a result of certain complications related to a family member’s military deployment.
  • Spouses and family members of military personnel — A relatively recent amendment to the FMLA qualifications states family members of servicemen and servicewomen who have been seriously injured can take up to 26 weeks of leave to take care of them.

FMLA Violations

Many employers commit FMLA violations simply out of ignorance. Others do it because existing policies conflict with specifics of the law. Regardless of intent, if your employer has punished you for taking medical leave covered under FMLA, you are entitled to compensation. Typical FMLA violations include:

  • Denying leave for a qualifying condition — According to the Act, FMLA leave must be granted for any “illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.”
  • Disciplining or punishing employees for taking time off — While an employer can request that an employee use their paid absences before taking unpaid leave, under FMLA they cannot bring disciplinary action against anyone whose time off exceeds that allotted to them under the normal terms of their contract.
  • Discontinuing health insurance coverage — If an employee receives insurance through their work, coverage must continue while they are on FMLA-protected leave.
  • Refusing to reinstate an employee to their old position and salary — The employer may also require them to re-qualify for benefits coverage.

Employee Rights to FMLA

One of the FMLA employee rights many people don’t know about is the fact that you don’t have to use all of your leave at the same time. You can take your leave at different times of the year if it becomes medically necessary to do so.

If you have any reason to feel your employer has violated your FMLA rights, you can notify the Wage and Hour Division of the U.S. Department of Labor. In addition, you can file a civil lawsuit against your employer. If you choose to file a lawsuit, you will have to do so within two years of the date the FMLA violation took place.

FMLA-Protected Leave and a Child’s Birth

If you are expecting, FMLA rules allow you to use up to three months of leave during the pregnancy or after the birth of a child. This includes any incapacity you are experiencing related to the pregnancy or any health condition that may develop after the birth. If you are the father, you can use FMLA-protected leave during the birth, as well as to care for your spouse, whether she has become incapacitated due to the pregnancy or the childbirth.

Returning to Work After FMLA Leave

A lot of people have questions and concerns regarding FMLA rules and going back to work after a leave. For example, they may be worried that the illness or injury that forced them off the job in the first place could increase their health risks when they return. If your employer requires you to resume your normal duties, but you have certain limitations, you may be able to obtain reasonable accommodations under the Americans With Disabilities Act.

Once you do return to work after FMLA-protected leave, including child birth, you must either be reinstated to the same position you had before or a truly equivalent position. If you are no longer eligible for that position because you need to take a continuing education course, renew a license or meet a similar requirement, your employer will be required to give you a reasonable chance to do so.

One exemption to this requirement would be a highly compensated worker whose reinstatement would cause major economic problems for the employer. However, the employer could only claim this exemption if it clearly stated the employee would not be able to return after taking their leave.

Another exemption occurs when an employer can prove it would have fired the employee whether or not that employee had taken FMLA-protective leave. One example would be that of a retail store that closes during an employee’s leave due to a downturn in business.

There is also a chance your employer may require you to have information from your doctor verifying you are fit to return to your regular duties. If you are cleared for full duty, your employer must fully reinstate you as quickly as possible. If, however, your doctor says you need certain accommodations to perform your essential duties, your employer will have to do everything possible to provide those accommodations.

Get Help with your FMLA Claim

The lawyers at McCarthy Weisberg Cummings, P.C.  have a long history of representing clients in FLMA cases. If you think your rights under FMLA have been violated, contact our office today to arrange your free initial consultation. One of our attorneys will review your case and help you take the first steps to getting your position reinstated or obtaining compensation for any losses incurred as a result.

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