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Introduction to the
Family and Medical Leave Act

Right to return to work

An employee returning from family or medical leave is entitled:

1. to be restored to the position held when the leave commenced; or

2. to be restored to an equivalent position.

See, 29 U.S.C. Section 2614(a)(1).

Just because an employee takes family or medical leave, he cannot lose any employment benefit which he had already earned. However, nothing in the Act entitles an employee to:

1. the accrual of any seniority or employment benefits during any period of leave; or

2. any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.

See, 29 U.S.C. Section 2614(a)(2) and (3).

An employee who has taken leave because of a "serious health condition" may have to provide certification from a health care provider that he or she is able to return to work. Also, while an employee is on medical leave, an employer may require the employee to report periodically on his status and his intention to return to work. See, 29 U.S.C. Section 2614(4).

Denial of job restoration to certain employees

Salaried employees, who are among the highest paid 10 percent of the employer's workforce within a 75 mile radius of the facility where the employee works, may be denied restoration to their jobs under the following conditions:

1. the denial is necessary to prevent serious economic injury to the employer;

2. the employer gives the employee notice of its intent to deny restoration at the time the employer determines that such injury would occur; and

3. in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.

See, 29 U.S.C. Section 2614(b).

Health insurance during leave

While an employee is out on family or medical leave, the employer must maintain coverage under any group health plan as would have been provided had the employee not taken leave. For example, if the employer pays a certain percentage of the insurance premium, then it must continue to make that payment. See, 29 U.S.C. Section 2614(c).

Protection for employees exercising their rights

The FMLA protects employees from retaliation for exercising their rights under the FMLA or for opposing an action of an employer that violates the FMLA. See, 29 U.S.C. Section 2615.

In order to establish a retaliation claim under the FMLA or any other discrimination law, the employee must show three things:

1. that he or she engaged in a protected activity (exercising one's rights under the FMLA or opposing the employer's conduct that violates the FMLA would both be examples of protected activity);
    

2. that he or she was subjected to an adverse employment action (like termination); and
    

3. that the adverse employment action was because of the protected activity.

Case example: King v. Preferred Technical Group, 166 F.3d 887 (7th Cir. 1999). The Seventh Circuit holds that the McDonnell Douglas burden shifting analysis applies to FMLA retaliation cases.

Case example: Haschmann v. Time Warner Entertainment Co., L.P., 151 F.3d 591 (7th Cir. 1998). Employee presented sufficient evidence of retaliation to support jury verdict in her favor.

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