The Lacy Employment Law firm

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FMLA PA: Your Right To Leave​

The Family and Medical Leave Act (FMLA) is a federal statute that provides qualified employees with the right to job-protected, unpaid leave. You have to apply for leave under the Family and Medical Leave Act to receive it.  

At some point in your life, you are likely going to need to take leave. Whether for good news – the birth or adoption of your child. Or for bad news – for your illness or the illness of a loved one. The FMLA can help. 

Employers are mostly understanding.  But, of course, sometimes they are not.  They may attempt to interfere with your leave.  Or they may retaliate against you.

In these situations, The Lacy Employment Law Firm can help you deal with FMLA violations by employers.

In this guide, we will learn:

  • Who qualifies for FMLA leave;
  • Your employer’s obligations under the FMLA;
  • How conditions qualify for FMLA leave;
  • How long the FMLA provides job protection;
  • Whether you will receive pay while on FMLA leave;
  • How to sue for FMLA violations;
  • How the FMLA applies in Pennsylvania, Philadelphia, and Pittsburgh;

This information will help inform you of your rights in the workplace.  And, if you need to sue for an FMLA violation, you will know the right questions to ask your lawyer during the initial consultation.   

Overview of the FMLA

The Family and Medical Leave Act differs slightly from other employment statutes.  

Title VII, the ADEA, and the ADA prevent discrimination in the workplace.

That is, they prevent the employer from treating you differently because of your race.  Or because you are a woman. Or because you are disabled; you get the point.  

The FMLA provides employees the right to protected leave and ensures that your employer does not retaliate against you for taking leave.

FMLA lawyers who advise and litigate FMLA issues know that employers often fail to honor your rights.  It may be that your employer committed FMLA Retaliation or FMLA Interference.

If you are applying for FMLA leave or believe you are entitled to FMLA leave, it’s never a bad idea to contact an employment lawyer.  There’s paperwork involved.  

And the process is not as straightforward as you might think.  

You may also have to resort to litigation.  That is, where you bring a lawsuit and argue that your employer violated the FMLA and federal law.  

Before rushing to federal court, you should first have some general information about how the statute works and your rights under it.  

Who Qualifies for FMLA in PA?

To qualify for FMLA leave in PA you must meet the conditions set in the Family and Medical Leave Act statute. 

Under the FMLA, you have the right to 12 weeks of unpaid, job-protected leave per year

You get this right after telling your employer that you need time off because of your health or the health of your loved one.

FMLA page for department of labor. fmla pa

The Department of Labor (“DOL”) provides the following information regarding the FMLA.

Let’s break this down.  To qualify for FMLA leave, you have to work for your employer for at least 12 months.  So, you can’t get FMLA if you just started your job. 

Additional requirements include: 

  • You have to have worked at least 1,250 hours in the past 12 months. 
  • You would have to work for about 24 hours a week for 52 weeks.
  • If you took vacation time, that number goes up to about 26 hours a week.

The FMLA also has a 50/75 rule. 

This means you can only request FMLA if you work for a company with over 50 employees.  This is to protect small businesses that cannot afford to give unpaid leave.

And 50 employees must have worked within 75 miles from the worksite.   

Employers who meet these guidelines are known as covered employers. These federal laws equally apply to you in Pennsylvania and any other state.  

And the Department of Labor enforces this law.

What are your Employer’s Obligations under the FMLA?

The Family and Medical Leave Act requires employers to display a poster providing information about employees’ rights under the FMLA.  The poster should sum up your rights under the FMLA.   

Poster for the FMLA in PA

You can find a copy of the DOL’s sample poster on its website.   The Department of Labor allows employers to use its sample poster.  There is no excuse for an employer not to follow this requirement.

Also, covered employers must display the poster in plain view.  That’s important.  It also must be visible.  This means that your employer cannot hide it behind a garbage can.

For employees that do not read and write in English, employers must provide the notice in a language in which employees can understand.

If employers fail to comply with this requirement, the Department of Labor can fine them.  

The “posting” requirement is not important to your rights.  But you should be aware it exists.  It provides a good summary of the FMLA and your rights under it.  

Further, you can let your coworkers know that they can check the poster if they have questions.  Although the poster is supposed to be visible, you can imagine someone walking by it if they do not know it exists.

If you qualify for FMLA leave your employer must give it to you.  And your employer cannot retaliate or interfere with your right to have it.  Remember, you have a statutory right to unpaid leave.  And your employer cannot frustrate that right.

What Conditions Qualify for FMLA?

There are many family and medical conditions that qualify under the Family and Medical Leave Act.  The FMLA lists the different ways you might qualify for FMLA leave.  The Department of Labor (DOL) provides guidance on that:  

Represents circumstances for FMLA leave. FMLA PA

As you can see from the DOL’s guidance, you can request FMLA under a variety of circumstances. 

There are several common reasons that employees request FMLA.  Sickness and disability fall into this category.

At some point in your life, you may find yourself becoming sick or disabled. This may require you to take time off from work to recover. The law protects your employer from discriminating against you for becoming disabled.  

The Americans with Disabilities Act (ADA) provides broad protections for those who suffer from a disability.  

The FMLA ensures that you are provided with time to recover when you become sick. And also time to cope with a disability.  

However, you do not have to be disabled to receive FMLA leave. The FMLA covers any serious health condition. A serious condition might involve you becoming sick, rather than disabled.

To receive FMLA leave, you have to ask your employer for leave and fill out the paperwork they send you by the deadline.  

Normally, companies grant leave.  But there are situations in which employers attempt to interfere with the employee’s rights.

Further, concerning childbirth, women often face a difficult choice.  As you can see from the data published in an article that Bob Dietrich wrote, pregnancy is the most often reason people take FMLA. 

Chart breaking down reasons for FMLA leave. FMLA PA

After paid maternity leave runs out, many women decide to take unpaid FMLA leave to care for their newborn child.  

Pregnancy discrimination unmistakably exists in the workplace.  And mothers coming back from paid maternity leave must decide between taking more unpaid leave or coming back before you are ready to appease the boss.  

If your employer refuses to give you leave or discourages you from taking leave, you may have an FMLA interference claim. 

In addition, here are some other common reasons why eligible employees take FMLA leave:

  • To care for family members, including a spouse, child, or parent. Some states include siblings, grandparents, domestic partners, and others in the definition of a family member;
  • Adoption or foster care;
  • A father case use FMLA to care for a newborn child and to care for his spouse who is incapacitated for medical reasons (due to pregnancy or childbirth);
  • Taking unpaid leave to heal from an injury constituting a serious health condition;

How Long will the FMLA Protect your Job?

Under the FMLA, you are entitled to 12 workweeks of leave in a 12-month period. 

FMLA requirement banner. fmla pa

You can also apply for intermittent FMLA leave, which allows you to only take leave as you need it. This allows you to take 12 weeks of leave in blocks as needed. For example, you can take time off here and there to go to doctor’s appointments.

This might lead you to believe that your job is protected for the entire 12 weeks while you are on leave.  I wish that were the case.

An employer can still fire you while you are on leave.  A big misconception is that this is illegal.

It is not.  Your employer cannot fire you because you are on leave.  But your employer can fire you for other reasons.  

Employment is at will in the United States.  That means that your employer can fire you for any legal reason.  These reasons may include:

  • Poor attendance;
  • Poor performance;
  • Disciplinary problems;
  • Personality conflicts; and
  • Reductions in Force.

Your company cannot, however, terminate your employment for an illegal reason.  Illegal reasons are those that violate federal and state employment laws.

Federal and state employment laws are designed to protect a variety of protected classes from discrimination and retaliation.  A protected class is a group of people qualified for protection under the law.  

As employment lawyers, we see a lot of cases where employees allege that their employer violated the FMLA and the ADA.

You do not get Paid while on FMLA

Under the Family and Medical Leave Act, your leave is unpaid.   You do have the right to keep group health benefits during the leave.  

You can, however, file a disability insurance claim for short term and long term disability at the same time.

Disability insurance can combine with FMLA leave to give you job protection and a portion of your income.

Another common question regarding the FMLA is whether you can receive unemployment benefits at the same time. Unfortunately, you are generally not able to collect unemployment while on FMLA leave.

There are a couple of exceptions:

  • You have restrictions but believe that you can work, and your company forces you to take leave anyway.
  • You can work in other positions at the company, but your employer won’t let you.

Can You Sue Your Employer for Violating the FMLA?

You can sue your employer for violating your rights under the Family and Medical Leave Act.  While on FMLA, your job is protected.  If you are fired, you likely will have a case for FMLA violations.

FMLA leave is closely-related to disability discrimination.  FMLA violations often occur in conjunction with disability claims.  FMLAs claim tends to bolster an ADA discrimination claim.  

If a company fires someone while they are on leave, there’s a good argument that they did so because they found out they were disabled.

Imagine having depression.  And you request leave to attend psychiatry appointments.  Or maybe it gets so bad that you do an inpatient stay at a hospital.

If you are a covered person under the FMLA, you have the right to leave.  If you told your company about your depression, and they fire you while you are on leave, you have a disability discrimination and retaliation claim, as well as FMLA, claims interference and retaliation.

Those two claims are not mutually exclusive.  

The same goes for pregnancy.  If your company fires you while you are on pregnancy leave, you may have a case for pregnancy discrimination and retaliation and FMLA violations.  

The FMLA generally accompanies other types of employment claims, but it does not have to.

FMLA Retaliation is a Violation of the FMLA

You can sue under the Family and Medical Leave Act if your company discriminates or retaliates against you for taking leave.  To succeed on a claim for FMLA retaliation you must prove: 

  1. That or requested FMLA leave, 
  2. Your employer took an adverse employment action against you, and
  3. Your employer took this action because you took or requested leave.

Let’s look at an example.

Looking at past cases helps illustrate how a judge might decide a case in the future.  The law may seem clear.  There’s no question that your employer can’t fire you because you took leave or because you requested leave.

But what lawyers are trained to do is take the law and argue that its interpretation is in your favor.  In this case, unfortunately, the lawyer for the employee was unsuccessful

Case caption for FMLA interference case. FMLA PA

The Plaintiff-employee (person suing), Ms. Allen, alleged that her company retaliated against her after she took FMLA leave.  Ms. Allen took three leaves of absences during her employment with Nutrisystem.

During her employment, Ms. Allen complained numerous times about her work environment.  She even filed a complaint with the Equal Employment Opportunity Commission (EEOC) for race discrimination.  

After Ms. Allen returned to work after her third FMLA leave, her company wrote her up three times.  These write-ups were for:

  • A no call/no show;
  • A “final written warning” to Plaintiff as a result of her violation of Defendant’s call policies and her treatment of customers; and
  • A “coaching notice” regarding her hanging up on a belligerent customer.

Her company fired her just two months after she returned from her third leave.

Ms. Allen lost this case:  

FMLA case opinion text. But she is unable to show that Defendant's decision to terminate her was causally related to her leave. FMLA PA

The court went on to find that her firing only two months after her third leave was not “causally related” to her request for FMLA leave. 

FMLA case opinion text to highlight time element

The court found that being fired two months after requesting leave and coming back from leave was insufficient.  That is, that her request for leave was too far removed from her firing.

Interestingly, the court did not discuss her multiple write-ups after coming back from leave.

One might argue that this is a bad fact.  It’s evidence that she’s a poor employee.  I’d argue to the contrary.

Her employers peppered her file with write-ups to set the record to eventually fire her.  It doesn’t appear that her lawyers argued this, however.  

This is a real case that happened.  As you can see, even though this case appeared straightforward, it was not.  

That’s why a good attorney is crucial for FMLA cases.  There are always nuances in the statute.  The statutory language is always subject to interpretation and argument over it.  

Good lawyers know how to maneuver through these nuances and position your case for the best possible outcome.

Employers Violate the FMLA by Interfering with your Rights

FMLA interference is like FMLA retaliation.  The difference is that your employer will attempt to interfere with your rights in certain ways.

Instead of firing you, your company may attempt to discourage you from taking leave altogether.

If you sue your employer for interfering with your rights, employers will have their own very qualified lawyers helping them vigorously defend the claim.  You should have the same. 

To succeed on an FMLA interference claim, you only have to prove that you were entitled to benefits under the FMLA and your company denied them.

These violations usually occur before your termination.  And sometimes your termination will quickly follow.  

Here are some ways in which employers typically interfere with your rights:

  • Asking you to work while on leave.  This is a big one.  You shouldn’t even have to open an e-mail while on leave;
  • Making discouraging comments about you taking leave, such as – “if you keep taking leave, I’m going to have to get rid of you.”
  • Trying to make you take leave on a different date.
  • Making you request leave at an unreasonably long period of time before it begins. The FMLA only requires you to give 30-days’ notice, unless that is unworkable.  Your company may try to give 50-days’ notice.  Or they may deny you leave during an emergency.  The FMLA allows for neither.
  • Your company may deny your valid FMLA claim outright. 
  • Your company may also demote you on your return.  This one likely falls within the retaliation category.

Even if you have not been fired, it’s never too early to contact an employment lawyer.  An employment lawyer can help you avoid interference with your rights altogether. 

How Does the FMLA Work in PA?

Pennsylvania companies must comply with the Family and Medical Leave Act if they have at least 50 employees for at least 20 weeks in the present or previous year.  

Employees may take leave if they worked at least 1,250 hours in 12 month period of time.  This is the same as federal law.

The FMLA is a federal law.  Congress passed the law on a national level.  This means that it applies to every state.  

The FMLA is the floor, not the ceiling.  States cannot pass laws giving you fewer rights than you would receive under federal law.  But states are free to pass laws giving you more rights.

Some states have passed laws expanding the FMLA in their respective state.  Unfortunately, Pennsylvania has not opted to expand the FMLA.

If you live in Pennsylvania, federal law, the FMLA, provides all of your rights for family and medical leave.

You May Have a Right to Sick Leave

The Family and Medical Leave Act does not give you the right to sick time.  No federal law gives you this right.  Your employer can, if it wants, make you use other paid time off days to cover your sick leave.

Unfortunately, Pennsylvania also does not have laws mandating that employers provide sick leave.  Employers in Pennsylvania are not required to give you paid or unpaid sick leave.

For those living in the two biggest cities in Pennsylvania, however, you have the right to paid sick time.

Philadelphia Paid Sick Leave

Although federal law and state law do not require employers to pay sick leave, Philadelphia city law does.  This means that if you work in the city of Philadelphia, your employer must provide you with sick leave.  

Philadelphia sick leave banner.

You can find more information on the city of Philadelphia’s website.  But the highlights of the law are that:

  • Employers with 10 or more employees must provide paid sick leave;
  • Employers with 10 or fewer employees must provide unpaid sick leave;
  • The law covers all employees, even those that work part-time;
  • Independent contractors are not covered;
  • You earn one hour of sick leave for every forty hours worked during the year;
  • Employers can front-load the time;
  • Your employer can — and likely will — limit your sick leave to 40 hours;
  • Employees can you sick leave for themselves or to care for a sick family member;
  • If you use sick leave for two consecutive days, your employer can require medical proof;
  • Your employer does not have to pay out unused sick days when you leave the company;
  • Employers cannot retaliate or discriminate against you for using leave;
  • Employers must notify you of sick leave rights;

These are the high-level points from the law.  As you can see, Philadelphia law provides employees a lot of protection when it comes to sick leave.  

You can see how sick leave differs from the FMLA.  For sick leave, you accrue leave for everyone one worked.  Or the employer can choose to front-load the time and give it to you at the beginning of the year.

You will notice that you will likely only accrue, at the maximum, 40 hours of sick leave.  Under the FMLA, your job is protected for 12 weeks.  But you do not get paid.  

Sick leave is a welcome addition to FMLA leave.  Everyone gets sick from time to time.  Before this law went into effect, you just had to hope that your employer provided you with this time.  

If you live in Philadelphia, you no longer have to hope.

Pittsburgh Paid Sick Leave

Pittsburgh recently passed its own paid sick leave law.   Under the act:

  • Employers must provide employees with 1 hour of sick leave for every 35 hours worked;
  • The maximum sick time accrued is 40 hours for employers with over 15 employees;
  • The maximum sick time accrued is 24 hours for an employer with less than 15 employees;
  • Employers can provide more generous sick time leave.
  • Accrued sick time can be used for your illness or to care for a family member.
  • The statute contains anti-retaliation provisions.

Pittsburgh’s sick leave policy is very similar to Philadelphia’s.  Under both laws, you receive paid protection up to 40 hours a year, in most circumstances. 

If you work in Pittsburgh or Philadelphia, before going on FMLA leave, you should consider using up your accrued sick time.  That time is paid.  And, like the FMLA, Pittsburgh and Philadelphia’s sick time laws include anti-retaliation provisions.  

This means that you have job protection when you go out on sick leave.  

If you live in other parts of Pennsylvania, you should check whether your city, county, or town has a sick leave policy.  If it does, you want to make sure you take advantage.  

Conclusion

The FMLA, like other employment statutes, has certain landmines.  This statute is unique because, if you qualify, your employer has to provide you with a benefit.

Sometimes employers deliberately deny employees their rights.  And sometimes they negligently do so.  

But, just remember, you have a right to:

  • 12 weeks of unpaid medical leave, if you qualify, and have been with your employer for at least a 12 month period of time;
  • You have the right to FMLA if you have a qualifying event, such as the birth of your child or an illness;
  • You have job protection while on FMLA;
  • You can sue for FMLA violations if you are fired while on FMLA;
  • Sick leave is available in Philadelphia and Pittsburgh;

An employment lawyer can help you navigate leave for family and medical reasons.  We are here to help in Pittsburgh, Philadelphia, and throughout Pennsylvania. 

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