The Employment Attorneys at the Akin Law Group helping workers with the Family and Medical Leave Act (FMLA)

What is the Family and Medical Leave act? (i.e. What is FMLA?)

The Family and Medical Leave Act (FMLA) is a federal law that permits eligible employees to take unpaid leave for family and medical reasons. Employees may take twelve weeks off of work in a 12-month period in order to deal with a variety of circumstances, such as childbirth, a medical condition, or to care for a family member with a serious illness.

Recently, over 20% of eligible employees exercised their right to take a leave under the FMLA. Taking a leave can be crucial for employees who are facing serious medical conditions or have to care for family members who are seriously ill.

If you are an eligible employee and your employer takes action against you for taking FMLA leave, then you may be able to file a lawsuit to recover your damages. The Family Medical Leave Act attorneys at the Akin Law Group are passionate about protecting the rights of employees who have to take an FMLA leave in order to deal with serious medical issues. If you suspect that your FMLA rights have been violated, call us immediately at 212-825-1400 to schedule a free and confidential consultation to discuss your rights and options.

What are some of the Valid Reasons to take FMLA Leave?

The FMLA allows eligible employees to take:

  • Twelve weeks of leave over a 12-month period for:
    • The birth of a child, or caring for a newborn that is up to one year old;
    • Caring for a newly adopted child or foster child that was placed up to a year ago;
    • Caring for a spouse, parent, or child (son or daughter) who has a serious medical condition;
    • A serious medical condition that renders the employee incapable of performing the basic functions of his/her job;
    • A qualifying need that occurs because the employee’s spouse, child, or parent is a covered member of the military
    • Other reasons which may be more fact specific.
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered “service member” with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Who is covered by the FMLA?

The FMLA only applies to employers that meet certain criteria. A covered employer is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Does the FMLA leave apply to my company?

The FMLA only applies to certain businesses / employers. In order to be covered under the Act, the employer must be one of the following:

  • A private-sector company that has 50 or more employees who work 20 or more weeks in a calendar year (12 month period);
  • A public agency (such as an agency that is a part of the Federal Government, or a part of the New York or New Jersey state governments), regardless of how many employees it has (the division need not have 50 or more employees);
  • A public or private elementary or secondary school, regardless of how many employees it has

Am I eligible to take FMLA leave?

The FMLA does not apply to all employees. To be eligible to take FMLA leave it must be that the employee:

  • Work for an employer that is covered by the FMLA as stated above;
  • Has been working for the company for at least one year (12 months);
  • In the past 12 months (immediately prior to taking leave), has worked at least 1,250 hours for the company;

If you are an eligible employee and have been denied rights pursuant to the FMLA, or if you have been terminated for taking leave, you should immediately contact one of the employment lawyers at Akin Law Group to discuss your claim in greater detail.

Health benefits under the FMLA

Employers must continue to provide group health insurance coverage for the employees that take FMLA leave. This coverage must be under the same terms and conditions as if the individual had not taken a leave. Some employers have insurance plans that also provide coverage for the employees’ family members; in this event the employer must continue to provide insurance coverage for the employee’s family members.  However, during the time that the employee is taking FMLA leave, he/she must continue to make the same amount of contributions to the cost of insurance premiums that he/she paid while working.

Can my employer change my position for taking FMLA leave?

Employees that return from FMLA leave are entitled to restoration to their former position, or to an equivalent position with the same terms and conditions, including the same compensation and benefits. An employer that places an employee returning from FMLA leave into a less advantageous position is in  violation of the law.

Are same-sex couples covered under the FMLA?

On March 27th, 2015, the definition of “spouse” under the FMLA was changed to include employees in legal same-sex marriages. The FMLA applies to same-sex married couples regardless of the state in which they now reside and regardless of whether the state recognizes the marriage. That means that if a couple married in a state where same-sex marriage was recognized subsequently moves into a state where it is not recognized, they will still be covered by the FMLA act. If you are in a same-sex marriage and your employer denies you the rights you deserve pursuant to the FMLA, you should contact one of the employment attorneys at the Akin Law Group as soon as possible.

New York State Family and Medical Leave Laws

Employees in New York State are protected by both FMLA laws and a number of state laws. If you are a New York State employee, you are guaranteed additional benefits by the local laws, such as:

  • The New York Military Family Leave
    • Employers that have 20 or more employees (not 50) must allow time off for eligible employees who have a spouse that is a member of the military. When the employee’s spouse is on leave from deployment, the employer must allow up to ten days of leave.
  • Adoption Leave
    • Employers that allow leave for the birth of biological children must allow the same amount of time off for the adoption of a child that is of preschool age or younger.
  • New York Temporary Disability Leave
    • Employees who are injured or become ill off the job may be eligible for short-term disability benefits, where they are paid 50% of average wages for up to 26 weeks in a 52 week period.

If you believe your employer violated your right to take family or medical leave under New York State law, you should contact one of the employment lawyers at the Akin Law Group where the employment attorneys have extensive knowledge of city, state, and federal aspects of employment law, and are prepared to defend your rights.

Am I entitled to Paid sick leave?

Federal laws do not provide workers with paid sick days. New York City law, on the other hand, guarantees individuals who work for employers with 5 or more employees up to 5 paid sick days per year. The law applies to domestic workers, such as housekeepers and babysitters, as well as to individuals who work for employers that are based outside of New York City. At the end of each calendar year, up to 40 hours of unused sick leave may be carried over to the following year although the employer may, instead, chose to pay the employee for the unused sick leave instead of allowing it to be carried over to the following year.


Can my employer refuse to grant me FMLA leave?

It is illegal for employers to prevent eligible employees from exercising their FMLA rights. Covered employees may not:

  • Refuse to allow an eligible employee to take FMLA leave
  • Discourage an employee from taking FMLA leave
  • Manipulate an employee’s hours in order to avoid having to comply with the FMLA
  • Use an employee’s leave as reason to take adverse employment action, such as firing, refusing to promote, and disciplinary action.
  • Count an employee’s FMLA leave under a “no fault” attendance policy

Employers are prohibited from retaliating and discriminating against employees because they:

  • Exercise or attempt to exercise their FMLA rights
  • Oppose or complain about unlawful practices under the FMLA
  • File a charge under the FMLA
  • Are about to participate in a proceeding related to a violation of an FMLA right

The employment attorneys at Akin Law Group are ready to protect your FMLA rights

If your employer refused to allow you to take FMLA leave or took adverse employment actions against you (terminated you or placed you in a less desirable position or less desirable schedule) for taking FMLA lease, you should contact an FMLA attorney right away. The employment lawyers at Akin Law Group are highly experienced in matters of employment law such as the FMLA, employment discrimination, sexual harassment etc., and are ready to help you obtain the maximum amount to which you are entitled. Call the Akin Law Group at 212-825-1400 as soon as possible to schedule a free consultation with an experienced employment attorney.