Denial of leave for medical or family emergencies can be devastating to employees. A skilled attorney or law firm can help employees make their needs known, and assert their rights. In numerous instances in the past, employees have been able to file claims under federal or state law for wrongful denials of family or medical leave.

The Family and Medical Leave Act (FMLA) creates a federal right to unpaid leave from a job, with a right to keep the job. The leave has to be for purposes of caring for certain family members or medical conditions. It is generally limited to 12 workweeks of leave. Some jobs are also not covered by it, so not every worker has FMLA rights. So the first requirement is to be employed by a covered employer.

Employees without a certain length of employment may not be entitled to family or medical leave. A basic guideline is employment for the same employer for a minimum of 12 months, resulting in at least 1,250 hours of service. Reasonable notice of the intention to take an unpaid leave is another requirement, so an employer for example can make other arrangements.
A certification of medical need, in cases of medical as opposed to family leave, may also be needed. This may be done by a healthcare provider, after examining the employee.

There are two ways to assert an employee’s federal rights under the FMLA. An “entitlement” or “interference” lawsuit involves a violation of the employee’s right to take the leave under 29 U.S.C. § 2615(a)(1), and (2). And the “retaliation” or “discrimination” lawsuit involves an employer who treats employees badly or denies them some benefit because they take a leave or more than one leave. In such a case under 29 U.S.C. § 2615(a)(2), an employee must have sought a right under the FMLA, the employer must have known of the attempt to use FMLA rights, and there must be a sufficient connection between the attempt to use leave rights and some adverse employment action such as termination, denial of promotion, denial of a beneficial transfer open to other employees, denial of pay or benefits (other than the pay associated with an unpaid leave itself), etc.

Paid leave

The New York State Paid Family Leave Law (“NYSPFLL”) and New York State Human Rights Law are important workplace protections in New York state. An employee may file a worker’s compensation claim for an employer’s failure to pay for family leave in New York.

In addition, the Human Rights Law relates to some requests for leave for a “disability,” which means “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function; (b) a record of such impairment; or (c) a condition regarded as such an impairment.” Assuming that a worker has a qualifying disability and the employer is covered by the Human Rights Law, the worker may have a claim for discrimination or retaliation (which may take the form of a hostile work environment). The discrimination or harassment must have occurred because of the disability and in the case of harassment must be so serious as to have an effect on “the conditions of employment and create an abusive work environment.”

Paid family leave in New York is a right to 50% or more of an employee’s average pay during leave days. In was phased in starting in 2017 and applies to requests for leave to care for a baby, qualifying sick or injured family members, new adoptions or fostering of minor children, or family needs occasioned by military duty of an employee’s spouse, domestic partner, child or parent (including a new call or order to active duty). Starting in 2021, the maximum length of paid leave was 12 workweeks, and the pay was set at two-thirds or almost 70% of the normal pay up to $1,131.08/week. In cases of medical leave, up to 26 weeks may be available, at 50% of normal pay up to $170 per week (which is not quite 50% of the minimum wage of more than $600/week at 40 hours). Job protection for workers taking leave is a right in New York as well.

Paid leave is a vital lifeline for workers who qualify for it. People living paycheck to paycheck may not be able to afford an unpaid leave as they need to continue to pay their bills. A substantial majority of African-American, Hispanic, and American Indian/Alaska Native workers are either not covered by or cannot afford to take unpaid leave. A majority of African-American and Hispanic employees nationwide do not have paid family leave. Low-wage or low-status jobs (in terms of managerial status) are less likely to carry paid leave in their job description. Some jobs have paid leave but under a Paid Time Off or “PTO” leave policy that adds leave days or hours slowly, making it difficult for new hires to use it.

Next Steps

It is important to know your rights as an employee when it comes to job protection after a leave, paid leave, leave welcoming a new child by birth or adoption/fostering, or dealing with medical issues personally or in a family. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.