Although many employees successfully take FMLA leave without incident, some employers attempt to convince employees not to take FMLA leave or take adverse employment actions against those employees who do.
It is illegal under the FMLA for an employer to refuse a valid request for leave, or to retaliate against or punish an employee who requests or takes FMLA leave. If your employer has wrongly denied you the FMLA leave that you are entitled to, the Nashville FMLA attorneys of The Employment and Consumer Law Group can fight for you.
You have a right to take this protected leave, and our legal team will make sure that your ability to do so is respected. Contact us today to discuss the specifics of your situation.
Qualified Employees Under the FMLA
The FMLA applies to all public agencies, all public and private elementary and secondary schools, and all companies with 50 or more employees in 20 or more workweeks in the current or preceding calendar year (including employees of joint employers and predecessors or successors in interest).
The FMLA requires all covered employers to provide qualified employees with a maximum of 12 workweeks of unpaid leave during each calendar year for any of the following purposes:
- Birth and care of a newborn child of the employee
- Placement of a child for foster care or adoption with the employee
- Care of an immediate family member (spouse, child, or parent) with a serious medical condition
- Medical leave if the employee is unable to work due to a serious health condition
In addition to traditional FMLA leave, a covered employee may also take up to 26 workweeks of leave during any 12-month period to care for a covered service member with a serious injury or illness if the employee is the service member’s spouse, child, parent, or next of kin.
An employee must meet several criteria to be qualified to take FMLA leave. These criteria are:
- Having worked for one’s employer for at least 12 months (does not have to be consecutive)
- Having worked at least 1,250 hours within the last 12 months
- Work at a workplace where the employer has at least 50 employees within 75 miles of the workplace
The calculation of hours worked for FMLA qualification is done according to Fair Labor Standards Act principles governing compensable hours.
Your Rights Under the FMLA
The FMLA requires your employer to hold your position – or an equivalent position, with equivalent pay, benefits, and other terms and conditions of employment – for you during any period of FMLA leave.
It is illegal for an employer to take an adverse employment action in response to your proper use of FMLA leave, such as:
- Reduction in pay
- Suspending or terminating health insurance benefits
- Reassignment to a lower position
- Diminishment of essential job duties
- Unwarranted disciplinary action
- Considering use of FMLA leave in promotions or other employment decisions, such as layoffs
- Decreasing other compensation or benefits of employment
Depending on the circumstances, you may take FMLA leave on an intermittent or reduced schedule basis. This means that you may be entitled take leave in multiple discrete blocks of time or reduce the time you work each workday or the number of days you work in a workweek, all for a single qualifying reason.
If the reason is for the birth, fostering, or adoption of a child, your employer may be entitled to require its approval for an intermittent FMLA leave schedule. You may also be required to make a good faith effort to schedule planned medical treatment to not unduly disrupt your employer’s operations.
Your employer may require you to comply with its customary procedures for requesting leave, especially when the leave is foreseeable, and to provide the employer with reasonable information to determine whether the FMLA applies to your leave request. If your leave is not foreseeable – such as when caused by a medical emergency – you must still provide your employer with notice as soon as possible and practicable under the circumstances.
If you are seeking leave for the first time for a reason covered by the FMLA, you are not required to explicitly assert your FMLA rights or cite the FMLA. If you request additional leave for the same condition, then you must specifically reference the qualifying reason or the need for FMLA leave.
Finally, if contained in your employer’s written policies, your employer may require you to concurrently use accrued paid leave as you take FMLA leave. Alternatively, if permitted by your employer, you may choose to use your paid leave to receive compensation during your FMLA leave.
Protections Under the Tennessee Family Leave Act
In addition to the rights and privileges granted under the FMLA, Tennessee law also provides additional family and medical leave rights under the Tennessee Human Rights and Disability Act (4-21-408). The law applies to any employer in Tennessee that employs at least 100 full-time employees on a permanent basis at the work location of the employee seeking leave under the act.
According to Tennessee law, any employee who has been employed as a full-time employee for at least 12 consecutive months may take up to four months of leave for pregnancy, childbirth, nursing of an infant, or adoption of a child (defined as beginning at the time employee takes custody of the child).
If an employee gives at least three months’ advance notice to his or her employer of his or her anticipated date of departure, length of leave, and intention to return to full-time status, that employee is entitled to be restored to their prior position or a similar position with the same status, pay, service credit, and seniority as of the date of leave. If leave must be taken due to a medical emergency or because an adoption was received in less than three months, the employee will still be entitled to return to their prior or similar position upon their return.
An employer may decide whether to offer leave on a paid or unpaid basis. An employer will also not be held liable for failing to reinstate an employee at the end of the leave period if, due to the unique nature of employee’s position, the employer is unable to temporarily fill the position after reasonable efforts.
Finally, if an employer discovers that an employee used leave to pursue other employment opportunities or worked part-time or full-time during their leave, the employer need not reinstate the employee.
How Our FMLA Lawyers Can Help You
If your employer has denied your FMLA request or if you have suffered harassment, demotion, loss of pay, benefits, or job responsibilities, been passed over for assignments or promotions, or have been terminated due to your FMLA leave, the dedicated and experienced FMLA lawyers of The Employer and Consumer Law Group can help you enforce your right to take leave or can help you seek compensation if you have lost pay or benefits if you have been subjected to retaliation for taking FMLA leave.
Contact us today to schedule a consultation to learn more about your rights and about how our legal team can help you assert your rights to take leave to care for yourself or your loved ones.