Your rights under the Family Medical Leave Act
The Family Medical Leave Act allows employees to take time off to deal with family illness or injury without losing their job. You can take time for yourself or to care for a family member. You generally get 12 weeks a year, although there are some eligibility requirements.
The main purpose of FMLA is job protection. Your employer is under no obligation to pay you for your FMLA leave. However, you must be allowed to keep your benefits during your leave, and when you get back, your job should be waiting for you. In most cases, you should pick up where you left off, with no penalty or discrimination for being gone.
You should be eligible for FMLA leave if:
- You have worked for your employer for 12 months;
- You have worked at least 1,250 hours over the previous 12 months; and
- You work at a location where your employer has at least 50 employees within 75 miles (FMLA doesn't apply to smaller businesses, with the idea that it could put small businesses in danger if employers were forced to allow long periods of leave)
FMLA is only for certain family and medical reasons. It can be for the adoption or birth of your child, or because you or a family member have a serious health condition. If you are caring for a family member, they must be a spouse, child or parent. The child has to be younger than 18 unless they are disabled. Your employer is limited in the questions they can ask, although they can request documentation that shows you are taking leave for a serious health condition. Birth or adoption of a child qualifies.
If you qualify for the leave, your employer has to let you take it. It is not at their discretion. You get 12 weeks of unpaid time off according to the law. FMLA leave can overlap with paid time off, such as paid sick leave, paid vacation, or even workers' compensation leave. The key is that your employer has to give you proper notification before they can count it against your 12-week FMLA time. In general, an employer cannot retroactively designate time off as FMLA leave.
It's illegal for an employer to fire an employee because they took time off under FMLA. It's illegal for an employer to refuse to give an employee their job back (in most cases), and it's illegal for an employer to penalize an employee, in terms of promotions or pay, because they took FMLA leave. If an employer does any of these things, the employee can pursue an FMLA discrimination case.
In an FMLA discrimination case, you are going after your employer for the loss you suffered due to their illegal actions. You are looking to recover the pay that you would have received had they not fired you.
There are other issues that an Illinois FMLA attorney can help with. Employees commonly experience frustration with getting their leave approved, as well as confusion around what counts as FMLA leave, whether it overlaps with paid leave, and what documentation can be required by the employer. An employer is not allowed to interfere with your right to take FMLA leave, if you qualify.
If you have questions about FMLA or need help finding an Illinois attorney to investigate a possible claim against your employer, contact us. It's free and confidential to talk to one of our attorneys.