Family or medical issues can strike anyone. Federal law gives most employees the right to take unpaid leave to tend to these issues. If your employer has impeded you from taking this kind of leave or has punished you for taking leave, your employer may have engaged in impermissible interference or retaliation in violation of the Family and Medical Leave Act, which could entitle you to compensation. If this has happened to you, you should reach out to an experienced New York FMLA interference lawyer right away.
The FMLA allows eligible workers to take up to 12 weeks of unpaid leave within any 12-month period. One of the keys is understanding who is, and who is not, eligible. A recent FMLA case from here in New York City takes an important look at that question of FMLA leave eligibility.
The employee (and the plaintiff in the lawsuit) was a senior advisor for a New York State Assembly member from East Harlem. While working for the assembly member, the advisor, who had Type-II diabetes, “discovered a hole in his left foot.”
The advisor’s doctors admitted him to the hospital on July 20, 2023. The assembly member visited the advisor in the hospital on July 24, and the advisor notified the assembly member that his doctors planned to amputate his toes and that “he would have to remain in the hospital to determine if further amputation was needed “
According to the advisor’s lawsuit, the assembly member terminated his employment two days later.
The advisor’s lawsuit listed several claims, including disability discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law, as well as interference with FMLA rights. The assembly member filed a motion asking the court to throw out all the advisor’s claims.
The advisor successfully defeated all the employer’s arguments and maintained his disability discrimination, failure-to-accommodate, and FMLA interference claims.
As the trial court pointed out when it ruled for the advisor, a worker alleging FMLA interference “must establish:
- 1) that he is an eligible employee under the FMLA;
- 2) that the defendant is an employer as defined by the FMLA;
- 3) that he was entitled to take leave under the FMLA;
- 4) that he gave notice to the defendant of his intention to take leave; and
- 5) that he was denied benefits to which he was entitled under the FMLA.”
To be an eligible employee under the FMLA, you must have worked for your employer for at least 12 months and put in at least 1,250 hours during the previous 12-month period.
Avoiding an Unjust ‘Loophole’
The advisor had a potential challenge in his case. The events that gave rise to his FMLA interference claim occurred in late July 2023. The advisor began his job working for the assembly member on August 1, 2022, meaning that he had been on the job for just slightly less than 12 months when the alleged interference occurred.
The advisor overcame that challenge by persuasively arguing that “pre-eligible employees who request post-eligibility leave are protected by the FMLA.” The trial court, in accepting the advisor’s argument, noted that multiple federal courts, including at least one federal appellate court, have ruled in favor of pre-eligibility workers. The 11th Circuit Court of Appeals highlighted that, without protecting workers on the eve of eligibility from employer interference, “a loophole is created whereby an employer has total freedom to terminate an employee before [they] can ever become eligible.”
The Appellate Division court upheld the trial judge’s ruling in favor of the advisor, pointing out that the advisor’s complaint sufficiently alleged that “it was immediately apparent that he would need a prolonged medical leave of absence” and that the termination occurred before the advisor would have achieved FMLA eligibility.
Even though FMLA leave is unpaid, it is not without costs for the employer. The FMLA, for example, requires employers to maintain health insurance coverage for employees on FMLA leave. These employees also are entitled to retain their other job-related benefits. For these reasons (and more), many employers will seek to avoid granting FMLA leave.
If your employer has denied you leave or fired you for taking leave, you owe it to yourself to speak to the experienced New York FMLA interference attorneys at Phillips & Associates, PLLC. This kind of treatment may constitute a violation of the law, and our team is dedicated to helping employees like you get justice. To find out more, contact us online or call (866) 229-9441 to set up a free and confidential consultation today.