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Have you been fired during FMLA leave?

by | Sep 23, 2020 | Employment Law |

There are many Detroit area residents who are familiar with the Family Medical Leave Act (FMLA). The FMLA allows an employee to take up to 12 weeks of unpaid leave to care for themselves or a loved one. Employees typically take FMLA to care for themselves, a spouse or other family member with a serious medical condition or after the birth of a baby.  To be eligible, the employee must have worked for the employer for at least twelve months, must have worked at least 1250 hours over the past twelve months and must work for an employer that has at least 50 employees within a 75 mile radius.

After an FMLA leave, an employer must give the employee their same job back or an equivalent job with equal benefits or pay. Unfortunately, instead of doing so, an employee sometimes is fired or demoted during or after their FMLA leave or is otherwise the victim of other FMLA violations.

There are many common violations of FMLA by employers. The following are some of the more common violations.

Failing to recognize an FMLA leave request

An employee does not need to explicitly state that their leave request should be covered by FMLA. The employee just needs to give their employer enough information so that the employer should know it must be covered. The birth of a baby or caring for a spouse during cancer treatment are some of the reasons that FMLA leave should. The employee should receive all necessary paperwork and be able to continue health insurance.

Requiring too much notice

An employer cannot require more notice than the law allows. If there is an emergency and an employee needs FMLA leave to start immediately, FMLA allows this flexibility.

Postponing a leave

An employer can ask their employee to make a reasonable effort to schedule their leave in a way that doesn’t disrupt company operations and provide a 30 day notice. But an employer cannot ask their employee to postpone their leave or deny their leave because it is inconvenient.

Disciplining employee

An employer cannot usually fire or demote an employee during FMLA leave and they cannot count the leave as an unexcused absence or hold it against their seniority calculation.

Forcing an employee to work while on leave

An employer may not ask their employee to do any work-related tasks while they are on leave. An employer can periodically check in with their employee or ask them a quick work-related question like where something is located, but can’t ask too much of an employee.

Failing to reinstate employee

When an employee returns from FMLA leave an employer must return them to the same or an equivalent position. An employer cannot delay reinstatement and the position must have the same pay, benefits, job duties, worksite, etc.