Family and Medical Leave Act’s (FMLA) protections and limitations

What are employers prohibited from doing under the FMLA?

The Family and Medical Leave Act of 1993 (“FMLA”) makes it unlawful for covered employers to terminate or otherwise discipline an eligible employee for taking up to 12 weeks (or 26 weeks to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty) off from work to:

  1. care for a newborn or newly placed adopted or foster child;
  2. care for a seriously ill spouse, parent, or child;
  3. care for the employee’s own serious health condition;
  4. care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty; or
  5. use for “any qualifying exigency” arising out of the fact that a covered military family member is on active duty or called to active duty status in support of a contingency operation.

The FMLA also prohibits employers from retaliating against an employee who opposes violations of the Act. Your FMLA retaliation case may be proved by either direct or circumstantial evidence. If your FMLA retaliation claim is based solely upon circumstantial evidence of unlawful conduct, then you must prove that:

  1. you engaged in a statutorily protected activity;
  2. you suffered an adverse employment action; and
  3. a causal connection exists between the protected activity and the adverse employment action.

When an FMLA retaliation claim is based upon direct evidence of discrimination (that is, evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions), there is no need to prove the three elements of retaliation.

What are employers required to do under the FMLA?

Covered employers are required to grant eligible employees up to 12 weeks of leave during a 12-month period of time due to a qualifying event.

A qualifying event includes:

  1. the birth of the employee’s son or daughter;
  2. the placement of a son or daughter with the employee for adoption or foster care;
  3. care for the spouse, son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition;
  4. the employee’s own serious health condition that makes the employee unable to perform the functions of the employee’s position; and
  5. any qualifying exigency (as the Secretary of Labor shall determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.

In addition, covered employers must:

  1. restore eligible employees (except certain key employees) to the same or equivalent position following the leave; and
  2. maintain the health benefits of eligible employees during the leave.


An eligible employee’s right to reinstatement does not entitle a restored employee to a right, benefit, or position to which the employee would not “have been entitled had the employee not taken the leave.” Thus, for example, if an employee is discharged during or at the end of a protected leave for a reason unrelated to the leave, there is no right to reinstatement.

In addition, if an eligible employee is deemed a “key employee,” and reinstatement of that employee would result in “substantial and grievous economic injury” to an employer, the employer may deny reinstatement if it properly notifies the employee and gives him or her an opportunity to forgo the leave or return from leave. A “key employee” is a salaried employee who is one of the highest paid 10% of all employees within 75 miles of the employee’s worksite. The determination of whether the employee is a “key employee” is made at the time the employee provides notice of that he or she needs leave.

Available remedies

The FMLA authorizes an aggrieved employee to seek:

  1. equitable relief (including reinstatement and promotion);
  2. economic damages (including lost wages and benefits);
  3. interest
  4. liquidated damages (an amount equivalent to the lost wages, benefits, and interest), unless the employer can prove that it acted in good faith and had a reasonable belief that its actions did not violate the FMLA;
  5. attorneys’ fees, expert witness fees, and other costs.