Family and Medical Leave

If you qualify and your employer is obligated under the Federal Family and Medical Leave Act (FMLA), then your employee rights entitle you to take up to 12 weeks of unpaid sick leave in any 12-month period to care for yourself or family members, without losing your job or benefits.

Childbirth is included as a "qualifying event" under the FMLA for both the mother and father. Such leave is typically called maternity leave for the mother and paternity leave for the father. Adoption of a child is also a qualifying event under the FMLA, for both the adopting mother and father.

As indicated, your employer is not required to pay you while you're absent from your job on family or medical leave. Generous employers pay anyway for all or part of FMLA leave, while others permit or force employees to use accrued paid time off (PTO) or borrow from PTO that will be earned in the future.

Currently, there is no Federal law that requires employers to pay employees for any type of sick leave. But, in March 2007, Senator Kennedy reintroduced the Healthy Families Act. Refer to the blog post "Paid Sick Leave Update" for more information and updates.

Your employer may not retaliate against you for legitimately taking family or medical leave under the FMLA, such as by discharging you.

However, your employer is likely entitled to discharge you while you're on FMLA leave, if the reason is not retaliatory under the FMLA and not wrongful termination in any other way. That's based on court precedents, which effectively determined that employees on FMLA leave are not entitled to any greater rights, benefits or protections than other employees.

When you return to work from family or medical leave, under the FMLA your employer is required to re-employ you in your original job or an equivalent. If your employer does not re-employ you in your original job, then your employer must ensure that your equivalent job has certain characteristics that are virtually identical to those of your original job, such as wages, work hours and benefits.

Benefit reinstatement for either your original job or an equivalent must also include those that accrued before you took family or medical leave, such as vacation, unless you exhausted them as part of your FMLA leave.

If your state has a law with work-leave protections, then you're protected by whichever is more generous between the state law and Federal FMLA; for example, some states have laws that grant work-leave rights to eligible victims of crimes or domestic violence, so the victims may attend to related matters such as legal proceedings. The Federal FMLA grants work-leave rights only for resulting and serious medical conditions.

If your employer violates your employee rights under the Federal FMLA, then you may seek relief by filing a complaint with the U.S. Department of Labor's Secretary of Labor. Alternately, you may file an FMLA lawsuit without first notifying the Secretary of Labor. An FMLA lawsuit might provide more generous relief. An FLMA attorney will advise you and might take your case on a contingency basis.

To determine if your employer has violated your employee rights under a state version of the FMLA or any other state law that grants work-leave rights to eligible employees, start by contacting the relevant state department of labor. Alternately or additionally, consult an attorney.

On 1/28/2008, President Bush signed the National Defense Authorization Act (NDAA) into law. Among other things, the NDAA amended the FMLA for military family leave. Refer to the blog post "Paid Sick Leave Update" for more information and updates.

See the Family and Medical Leave Act Advisor by the U.S. Department of Labor to determine whether or not you're eligible for FMLA leave or to generally learn more about your employee rights under the FMLA.