The Albany Times Union published an article recently discussing the building momentum in the federal government towards passing legislation ensuring paid medical leave (of up to four weeks) following the birth of a child or to care for a sick relative.  While the legislation has some additional hurdles to actually become law, it is an important step in the movement towards paid leave.

Presently there is no mandatory paid federal medical leave.  The Family & Medical Leave Act (“FMLA”) provides up to 12 weeks for covered employees to care for themselves or a sick family member during a one year period, however the time provided under the statute is unpaid.  The FMLA simply requires that the employer essentially hold the employee's position during the approved medical leave, and not retaliate against the employee when she returns from leave.  

Retaliation is really the key concern when thinking about the prospect of federal paid medical leave.  It is not at all uncommon for an employee who returns from FMLA leave to feel “frozen out” of the workplace, resigned to menial tasks or otherwise removed from her typical day to day responsibilities.  Typically this happens as a result of the employer finding someone else to do the work while the employee is out on medical leave – when the employee later comes back the employer often has reassigned the work.  The FMLA, however, requires that the employer restore the employee to the same or a substantially comparable position upon return from the medical leave.

We have seen numerous situations where employers terminated or otherwise retaliated against employees upon returning from an unpaid FMLA approved medical leave, whether following a complicated pregnancy or other serious medical condition.  Our concern, from a practical and legal standpoint, is that with a required paid leave employers, already frustrated with having to allow employees to take an unpaid leave, will become increasingly frustrated with a paid leave.  It is very foreseeable that this could lead to an increase in claims of discrimination and, more particularly, retaliation for having exercised the right to take a paid medical leave following the birth of a child, for example.  As a result we will be very interested to see what sort of enforcement provisions are written into the law – in other words what teeth will it have?

As with leave protected by the FMLA, associated with a pregnancy or for any other legally protected reason, in the event paid leave becomes the law it will be important for employees to be aware of the rights that they are afforded.  And, as with FMLA or other protected leave, employees who believe that they have been the subject of discrimination or retaliation for having taken a medical leave should contact a New York employment discrimination attorney to determine if their rights have in fact been violated.  

  Scott Peterson by Scott Peterson | | Connect with me:

Representing plaintiffs in employment and serious injury matters.