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FMLA Interference vs. Retaliation

By: Virtus Law Group, Birmingham Alabama.


The Family Medical Leave Act of 1996 (FMLA) is a labor law that entitles eligible employees of covered employers to take unpaid, job-protected leave for qualified family and medical reasons. It also requires that their group health benefits be maintained during the leave. FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These covered employers must provide eligible employees up to 12 weeks of unpaid leave each year for things such as: the birth and care of an employee’s newborn child, the care of an employee’s immediate family member (i.e., spouse, child, parent) with a serious health condition, and medical leave when the employee is unable to work because of a serious health condition.

In order to be eligible for leave, an employee must have worked for their employer for at least 12 months,at least 1,250 hours over the past 12 months, and at a location where the company employs 50 or more employees within 75 miles. This first requirement can be a tricky one, as employers can establish this 12-month period using one of many methods: the calendar year, any fixed 12-month period (i.e., a year running from the employee’s anniversary date), a 12-month period measured forward from the first date an employee takes FMLA leave, or a “rolling” 12-month periodmeasured backward from the date an employee uses any FMLA leave. An employer may choose any of these four methods so long as the chosen method is applied consistently and uniformly to all employees.

There are two types of claims under the FMLA. First, employers are prohibited from interfering with, restraining, or denying an employee’s exercise of his or her FMLA rights. Second, employers are also prohibited from terminating or discriminating against an employee in retaliation for taking, or attempting to take, FMLA leave. Damages available to employees for their employer’s violation of the FMLA include back wages, front pay, as determined by the Judge, and liquidated damages.


To bring a successful claim of FMLA interference, an employee must show that (1) he or she is an eligible employee, (2) the employer is a covered employer, (3) he or she was entitled to take FMLA leave, (4) notice of the employee’s intention to take the leave was given to the employer, and (5) the employee was denied benefits to which he or she was entitled under the FMLA.


To bring a successful claim of FMLA retaliation, an employee must show that (1) he or she engaged in a statutorily protected activity (i.e., taking FMLA leave), (2) an adverse employment action was taken against him or her (i.e., demotion), and (3) there is a causal connection between the activity and the adverse employment action.

If you believe your employer has unlawfully interfered with your FMLA rights or retaliated against you for exercising these rights, call our firm today for a free consultation with one of our experienced attorneys.

Founded in Birmingham, Alabama Virtus Law Group is a Personal Injury and Labor and Employment firm serving the people of Alabama.



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