Twenty years ago today, President Clinton signed the Family and Medical Leave Act into law, which went into effect August, 5, 1993, six months later.  The bill was a major part of President Clinton’s agenda in his first term.  In the past twenty years, the FMLA has caused MAJOR headaches for employers.  As reported in a prior blog post, the FMLA provides employees with 12 weeks of UNPAID leave during any 12-month period to attend to a serious health condition of the employee, parent, spouse, or child, or for pregnancy or care of a newborn child, adoption, or foster care of a child.  In order to qualify, your employer has to employ at least 50 people and you have to have been employed for 12 months.

And while the FMLA is seemingly so young at only twenty years old (only one more year before being of legal age to purchase alcohol!… if it were a person and not a statute of course) there is a significant amount of case law that has developed over the past two decades that interpret the Act’s statutory language and the intent of the legislature in enacting it. The different federal circuits have come to differing conclusions on some issues, but have agreed on others. The United States Supreme Court has weighed in on the statutory employee benefit from time to time.

Not to be outdone, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (“NDAA”), which amends the FMLA and broadens its scope to apply to members of the armed services and their families while they are home from deployment. Case law is still developing as to the FMLA amendments, but the changes do not dramatically change the FMLA or its very essence.

Some of my most interesting cases have dealt with FMLA leave when an employer has interfered with or retaliated against an employee for using this leave.   I thought I would highlight the most common complaints I receive about FMLA from prospective clients and then provide a brief synopsis of what you can do if you believe this is happening to you.

1)  Right after my employer found out I am was going to take FMLA leave, they started treating me different.  (i.e., giving me different job duties, making up things I did wrong, isolating me, etc.)

2)  As soon as my employer found I was going to take FMLA and/or as soon   as I returned from FMLA leave, I was fired.  (I call these suspicious timing cases)

3)  Employer never specifically requested medical certification in writing or gave me 15 days to get the certification and then said that I was supposed to do this.

4)  While I was out on FMLA leave, my boss continuously contacted me asking me when I was coming back and checked on my medical status.

First, these are only a BRIEF sampling of some of the ways that employers can retaliate/interfere with your FMLA leave.  Nevertheless, they are some of the more common complaints that I receive.  Regarding 1 & 2, these are what I call “retaliation claims.”  Smart employers know better than to terminate employees right around the time that they take or return from FMLA but they still do it all the time.  Often times, they try to peg the termination on performance deficiencies they believe were present before they even knew you were taking FMLA leave.  Sometimes that is in fact the case and the employee has long-standing performance problems.  But other times, employers try to manufacture performance deficiencies to hide their true motive and we have to flesh these factual disputes out during the process that is called “discovery.”  Regarding 3, an employer can in fact request IN WRITING that you obtain medical certification to substantiate your need for FMLA leave but they must give you 15 days to return the form.  Often times, employers will ORALLY request a certification and this does not comply with the rule.  Then they try to penalize the employee for never obtaining the proper certification when they never complied with the rules in the first place.  Lastly, number 4 is an issue I have in a case I am currently litigating in federal court.  Employers are not allowed to “interfere” with your FMLA leave and this includes actions that would tend to “chill” or deter you from using your leave.  Badgering employees while they are on leave and asking them to check-in on a regular basis, send in weekly status updates, and do even menial work has been held by courts to constitute interference.  If you believe that any of these things are happening to you, you should call an attorney immediately to discuss your rights.  In the meantime, let’s wish the FMLA a happy 20th birthday.

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