Family and Medical Leave Act

Overview and Coverage

The Family and Medical Leave Act of 1993 (“FMLA”) entitles eligible employees to take up to twelve weeks of leave for certain qualifying reasons, which are: (a) the birth of a child and to bond with the newborn child within one year of birth; (b) the placement with the employee of a child for adoption or foster care and to bond with the newly placed child within one year of placement; (c) a serious health condition that makes the employee unable to perform the functions of his or her job; or (d) to care for the employee’s spouse, son, daughter, or parent who has a serious health condition.

Generally, in order to be eligible an employee must (1) work for a company that employs 50 or more individuals in 20 or more workweeks in the current or preceding calendar year;1 (2) work at a location where an employer has at least 50 employees within 75 miles; (3) have worked for the employer for at least 12 months; and (4) have worked at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave.

Available damages under the FMLA include lost compensation and benefits lost, liquidated damages, other actual monetary losses sustained as a direct result of the FMLA violation, and for equitable or other relief, reinstatement, promotion, or any other relief tailored to the harm suffered. 29 C.F.R. 825.400(c).

Atlanta employment lawyer Justin Scott provides representation to both companies and individuals with respect to claims of FMLA interference and retaliation.


Employers who do not permit eligible employees to take FMLA leave for qualified reasons may be liable for interfering with an employee’s FMLA rights. Further, following FMLA leave, employees generally are entitled to reinstatement in their job or an equivalent job with equivalent pay, benefits and other terms and conditions of employment. Failure to reinstate an employee following FMLA leave may also give rise to an FMLA interference claim.

The elements of an FMLA interference claim are: (1) the employee was entitled to a benefit under the FMLA (including the taking of leave and/or reinstatement), and (2) her employer denied her that benefit. FMLA cases frequently turn on whether the employee is eligible for FMLA, with common factual disputes concerning, for example, whether the employee has a serious health condition that makes her unable to perform the functions of her job within the meaning of the FMLA. The FMLA defines a serious health condition as, “an illness, injury, impairment, or physical or mental condition that involves” either “inpatient care in a hospital, hospice, or residential medical care facility” or “continuing treatment by a health care provider.” 29 U.S.C. § 2111(11).

Disputes can also arise over whether both sides–the employee and the employer–gave the appropriate notice under the FMLA. The FMLA requires employees to timely notify employers of their need for FMLA leave, including 30 days’ notice if the leave is foreseeable, and to provide medical certification from their doctors, as applicable. 29 U.S.C. § 2612(e). Note that the employees do not need to explicitly mention the FMLA to give notice. In turn, employers must, among other things, provide employees with notice of their FMLA eligibility within five days of learning that they may be entitled to FMLA leave. 29 C.F.R. § 825.300(b)(1). Failure of an employer to meet its FMLA notice requirements may independently give rise to an interference claim. Id. § 825.300(e).


Employers may not retaliate against covered employees for engaging in protected conduct, such as requesting or taking FMLA leave. The elements of an FMLA retaliation claim are: (1) the employee engaged in an activity protected by the FMLA; (2) she suffered an adverse employment action; and (3) the employer’s decision was causally related to the protected activity. It is important to note that, “an employee need not be currently exercising her rights or currently eligible for FMLA leave in order to be protected from retaliation.” Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1276 (11th Cir. 2012). Thus, an employee who notifies an employer that she will need FMLA leave at a future date is engaging in protected conduct under the FMLA.

Unlike an FMLA interference claim, an FMLA retaliation claim requires a mens rea showing, meaning that the employer acted with bad intent. This showing can be made by, among other things, temporal proximity and/or statements made by the employer showing displeasure with the employee’s protected conduct.

Contact Radford Scott LLP at (678) 780-4880 for assistance with FMLA interference and/or retaliation issues, or contact the firm online here.

1 There are exceptions to this requirement if the employee works for a public agency, including a local, state or federal government agency, or either a public or private elementary or secondary school.

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