questions & answers

Question: I was fired for my FMLA being denied. However my fmla should not have been denied, the 3rd party company my copany used to verify the information contacted the wrong hospital that my wife stayed at even tho I supplied them the name and the names of the 2 doctors that treated my wife. Since FMLA was denied that put me in violation of the attendance policy so I was fired. Do I have any recourse to file a claim,

Answer: Overview of FMLA

The Family & Medical Leave Act (FMLA) is a federal law that requires some employers to let their employees take time off work to recover from an illness, care for an ill family member, or to attend the birth or adoption of a child (29 U.S.C. 2601 et seq.). It also requires that group health benefits be maintained during the leave.

The FMLA does not protect all employees. Instead, it protects only covered employees. To be covered by the FMLA, you have to meet all of the three following requirements:
•You work for a company that has 50 or more employees within 75 miles of your workplace; and,
•You worked for your employer for at least one year before taking the FMLA leave; and
•You worked at least 1,250 hours in that year (about 25 hours per week) (29 U.S.C. 2611(2)).

If you are a "covered employee" under the FMLA, you can take up to 12 weeks of unpaid leave in any 12 month period for the following three reasons:
•To recover from your own serious health condition that prevents you from performing the functions of your job.
•To care for a child, spouse, or parent with a serious health condition;
•To give birth or adopt a child. Both mothers and fathers can take leave for the birth, adoption, and care of a new child (29 U.S.C. 2612(a)(1));

Covered Employees cannot be fired for taking the protected FMLA leave. Moreover, your employer cannot count your absences under a disciplinary policy if the reason for missing work was covered by the FMLA. (29 CFR 825.220(c)). FMLA leave is unpaid leave, but it can be combined with paid leave provided by the employer, such as vacation or sick pay. (29 CFR 825.207).

If you think you have been wrongly denied FMLA leave or if you have been punished for trying to take FMLA leave, then you have a few options.
•If you are in a union, you should talk to your union steward or representative about resolving the issue.
•You can file an administrative complaint with the Wage and Hour Division of the U.S. Department of Labor, as long as the complaint is filed within two years of the incident.
•You can also file a claim in federal or state court within two years of the incident.

If your employer violates FMLA, then you are entitled to the following, if successful:
•Reinstatement to your job if you were fired,;
•back pay for the amount of time out of work, and
•liquidated (double) damages if your employer cannot show that its acts were in good faith.
• If you go to court and you are successful, then you can also receive legal costs and fees.

When you return from a FMLA leave, you have the following rights:
•The same job, or an equivalent job, with the same pay, benefits, duties, hours, and location;
•If other workers in the same position as you received a raise or other increase in benefits while you were in leave, then you must receive it as well.
•Your employer must keep your health benefits for you as if you were still at work. This means that if the employer paid your health insurance premiums while you were working, then they would have to pay for your benefits while you were on FMLA leave.
•If your position was eliminated while you were on leave, then your employer does not have to give your job back. However, it is the employer's responsibility to prove that the lay off was not related to your FMLA leave.

Employee's Responsibilities
•If you pay part of your health care premiums, then you would be responsible for your part of the premium while on leave.   
•You must give your employer notice of your intent to take FMLA leave. If you know in advance that you are going to take a FMLA leave, then you must give your employer 30 days notice of the leave. However, if the need for the leave is unexpected, then you must give the notice as soon as possible, which means one to two days after learning the reason for leave. You are required to tell your employer the reason for the leave request. You do not have to request FMLA leave specifically. It is your employer's responsibility to ask more questions about the reason for time off, if it thinks the employee might be eligible for FMLA leave. However, if possible, you should put your request for FMLA leave in writing as soon as possible. You should also keep a copy of the notice for your records. Your employer can require a "fitness for duty" doctor's note that says you are physically able to return to work, if you have taken a full-time leave.