Many are rightfully disappointed to learn that there is no right to paid medical, maternal, or paternal leave in the United States. However, employees can qualify for unpaid leave pursuant to the Federal Family and Medical Leave Act (FMLA), which is codified at 29 U.S.C. § 2601 et seq. An employee is eligible for the Family and Medical Leave Act (FMLA) if they have been employed by the same employer for at least 12 months, and have worked at least 1,250 hours during the twelve (12) months prior to the start of the leave. This twelve (12) month qualification period need not be consecutive.
Additionally, the employer must have at least 50 employees who work within 75 miles of the employee’s worksite. If the employer is a public sector employer, such as a local, state, or Federal government office or a public school, then it does not matter how many employees it employs, and the employee is eligible for FMLA purely based on the amount of time that the employee has worked for the employer.
The FMLA provides an eligible employee with up to twelve (12) weeks of unpaid leave per twelve (12) month period, for one or more of the following reasons:
• Birth of a child or adoption or foster care;
• To care for a loved one with a serios health condition;
• For the employee’s own serious health condition; or
• For any qualifying emergency related to service in the military
It is not lawful for an employer to retaliate against an employee for pursuing rights under the Family and Medical Leave Act (FMLA). The law prohibits employers from retaliating against employees for using their rights under the FMLA, including firing, demoting, or harassing them. If an employee believes that their employer has retaliated against them for taking or requesting FMLA leave, they can file a complaint with the U.S. Department of Labor or file a lawsuit against their employer.
An employee does not need to file a charge with the Equal Employment Opportunity Commission (EEOC) before suing under the Family and Medical Leave Act (FMLA). However, if an employee wants to pursue a claim under both the FMLA and another federal law, such as Title VII of the Civil Rights Act (“Title VII”) or the Americans with Disabilities Act (ADA), they may need to first file a charge with the EEOC and exhaust administrative remedies before filing a lawsuit.
An employee can sue an employer for retaliation against the employee for taking FMLA and/or for the employer’s interference with the employee’s FMLA.
Interference occurs when an employer denies or interferes with an employee’s right to take FMLA leave. Examples of interference include denying an employee’s request for leave, discouraging an employee from taking leave, or retaliating against an employee for taking leave.
The difference between a cause of action for Family and Medical Leave Act (FMLA) retaliation and FMLA interference is the type of action that the employer is alleged to have taken against the employee.
An FMLA retaliation claim occurs when an employer takes an adverse action against an employee, such as firing, demoting or harassing, for using their rights under the FMLA, or for opposing a practice made unlawful by the Act. The employee needs to show that the employer’s action was motivated by the employee’s exercise of their rights under the FMLA.
On the other hand, an FMLA interference claim occurs when an employer denies or interferes with an employee’s right to take FMLA leave. This can include denying an employee’s request for leave, discouraging an employee from taking leave, or taking action to make it difficult for an employee to take leave. An employee can bring an interference claim regardless of whether the employer’s actions were motivated by retaliation for FMLA.
An employee can bring both retaliation and interference claims under the FMLA, but they need to prove different elements for each one.
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