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New York Family and Medical Leave Act Lawyers

New York Attorneys Protecting the Rights of Employees Under the Family & Medical Leave Act ("FMLA")


The Family and Medical Leave Act (FMLA) is a federal law that protects certain employees from being fired from their jobs when they need to take time off (up to 12 weeks) for certain designated reasons, including their own serious health conditions, the serious health conditions of certain family members, the birth or adoption of a child and certain employees affected by military deployments.

We most commonly see FMLA issues arise in the context of serious health conditions and the birth of a child.

Who Does the FMLA apply to?

The FMLA's application is somewhat limited. It only applies to individuals who work for public employers or a private employer with 50 or more employees in a 75-mile radius and employees who have worked for that employer for at least 1250 hours in the preceding year. An experienced employment attorney can determine whether the FMLA applies to you.

What Does the FMLA protect?

The FMLA applies to protect a qualified employee's job for a 12-week period. It is the employer's obligation to notify an employee of their right to take FMLA leave upon notice of the individual's qualifying reason (such as pregnancy, serious health condition or serious health condition of certain family members (including, sometimes, grandparents). The 12 weeks do not have to be taken all at once. They can be taken for certain blocks of time including even hours at a time. When the time is taken in smaller intervals it is referred to as intermittent leave.

The FMLA protects individuals from both interference with their rights and retaliation. Examples of interference include denying an employee time off when they are entitled to it; taking FMLA-protected absences into consideration when terminating an employee for excessive absenteeism; failing to notify employees of their rights under the FMLA when that failure actually results in the employee being denied some rights; and imposing impermissible restrictions on the exercise of FMLA rights. Examples of retaliation include terminating or otherwise disciplining an employee for complaining that his or her rights are being violated or terminating an employee for taking FMLA leave in the first place (some courts consider this to be a form of interference rather than retaliation).

An employee's right to FMLA leave is not absolute.

What is the Employer allowed to do?

Employers are permitted to request that employees submit a medical certification in support of their request for leave. Additionally, employees are required to notify their employers as soon as practicable of their need for FMLA leave. An employee does not have to actually say “I need FMLA leave”, you just need to notify your employer of a qualifying reason (for example, I need to get surgery) and it is then the employer's obligation to notify you of your rights.

What are the Notice Requirements?

When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA.  The employer will be expected to obtain any additional required information through informal means.  

When an employer acquires notice that an employee's requested leave may be for an FMLA-qualifying reason, the employer bears the obligation to notify the employee of the eligibility to take FMLA leave within five business days, absent extenuating circumstances. 

To learn more about the notice requirements in a real case, click here.

Is FMLA time paid?

The FMLA only protects 12-weeks of time and it is important to note that this time is unpaid. An employer is permitted to require you to take and exhaust disability, vacation and/or sick time at the same time as your FMLA leave so that you are not receiving more than 12-weeks of time total. If an employee is unable to return to work after the 12 weeks, he or she can be terminated. It is possible, however, that, at that point, the employee may be able to rely on disability laws to extend the 12-week period. It is important that if an employee requires this additional time off, they request it. You are not automatically entitled to additional time off (not all qualifying FMLA serious health conditions are also “disabilities” under the law and the law takes an employer's needs into consideration) but generally an employer is required to at least consider such requests.

What damages is a Successful FMLA Plaintiff entitled to?




The FMLA does not allow an employee to recover for compensatory damages like emotional distress or punitive damages (an additional amount intended to punish an employer for their wrongdoing). The FMLA also does not allow for recovery for “technical” violations. An employee must generally have some tangible loss (like being terminated or otherwise losing money or benefits) in order to recover. This means that if an employer fails to notify you of your rights (a technical violation of the FMLA), but you are still permitted to take 12-weeks of leave, you may not have a claim. An experienced employment attorney can determine whether you have suffered the type of harm that may take you out of the “technical violation” category.

How Do I file an FMLA Lawsuit?

Unlike many other anti-discrimination laws - such as those protecting race, sex, age and disability - the FMLA does not require a plaintiff to file a complaint with the EEOC before filing a lawsuit.  What this means, practically, is that you can file a lawsuit in Federal Court immediately after the termination.  

This may not always make sense, however, because often victims of interference or discrimination under the FMLA are also protected by disability discrimination laws (which often require EEOC filing).  For this reason it is good to speak with an attorney before moving forward.

What if I work for a smaller company not covered by the FMLA?

If you are an employee who is not eligible for FMLA leave because you work for a small company, you may be protected by the Americans with Disabilities Act which applies to employers with 15 or more employees or the New York State Human Rights Law which applies to employers with 4 or more employees. It is always important for employees to protect their rights by requesting time off and specifying the reason and complaining if that time off is denied.

Where Do You Handle FMLA lawsuits?

D'Orazio Peterson represents victims in FMLA lawsuits throughout the State of New York, including Albany, Schenectady, Troy, New York City, Syracuse, Rochester, Buffalo, Binghamton.

D'Orazio Peterson has reached successful settlements in cases involving the FMLA as well as in cases where we relied on the anti-disability discrimination statutes after an employee's 12-weeks of leave expired. If you feel you were terminated because of FMLA-protected absences or denied rights you were entitled to, please contact us for a free consultation.

To learn more, check out our definitive guide to the FMLA.

Or, for a quick, confidential case review, complete our intake questionnaire here.

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