Who is covered by FMLA?

The FMLA has many nuances when determining who is eligible for leave and for how much leave they are eligible. In short, the FMLA requires covered employers to provide qualified employees time to care of their own or a family member’s serious health condition. This applies to the caring for a spouse, child or parent of the employee. The FMLA also applies to the birth of a child, whether the employee is the mother or father, and for the placement of a child with you for adoption or foster care. Definitions and requirements for FMLA coverage:

  • covered employer is an employer with 50 or more employees within 75 miles.
  • qualified employee is an employee who has worked for their employer at least 12 months and worked in excess of 1,250 hours in the previous 12-month period.
  • serious medical condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider. Your own serious health condition must be such that you cannot perform the functions of your position. A serious health condition includes conditions or illnesses that cause you or a family member to be absent from work on a recurring basis for more than a few days for treatment or recovery.

How much FMLA leave am I eligible for?

Qualified employees may be eligible for up to 12 weeks of unpaid FMLA leave. This leave may be taken all at once or intermittently as the health condition requires.

For those in the military, a spouse, son, daughter or parent of an employee who is a member of the military service can take up to 26 weeks of military caregiver or exigency leave.

The Minnesota Pregnancy and Parental Leave Act provides even broader eligibility to Minnesota employees seeking leave for the birth or adoption of a child. Like the FMLA, Minnesota law allows up to 12 weeks of unpaid leave for employees who have been with their employer for at least 12 months. However, covered employers include those with 21 or more employees, and employees include those working at least half time. This leave must be taken within 12 months of birth or adoption. Employees only have a right of up to a 12-week leave in total, even if they also qualify under the FMLA. Minnesota employees who have been discriminated against because of pregnancy or suffered retaliation for taking a leave have additional employment protections.

How do I request FMLA leave?

Employees do not necessarily have to say the magic words “FMLA” or “Family and Medical Leave” to qualify for FMLA leave. However, an employee must provide enough information for the employer to understand that the leave may be covered by the FMLA.

Job Protection Under FMLA

The FMLA provides job protection. Following a leave of absence, the employer must return an employee to the same or similar position that has substantially similar duties, responsibilities and status. Further, the employee is entitled to identical pay and benefits. Certain key positions may not be guaranteed a return to the same position after their FMLA leave. You should consult an experienced FMLA retaliation attorney to understand whether this may be applicable to you.

FMLA Retaliation and Interference Are Unlawful

At times, an employee’s medical leave can be disruptive to the employer, and employees may be treated with hostility for asking for leave or experience retaliation for taking or asking for leave. This is unlawful. The Act prohibits employers from FMLA retaliation, interfering with, or denying the exercise of an employee’s FMLA rights. This could include harassment, unwarranted disciplinary action, demotion, cut in hours or pay, pressuring the employee to not take FMLA leave or termination. Further, the employer cannot terminate or discriminate against an employee who has opposed practices prohibited under the Act, whether through filing a charge, giving information as part of an investigation or testifying about it in a proceeding.

Contact Our Minnesota Employment Lawyers

The employment lawyers at Wanta Thome have represented many employees who have experienced retaliatory treatment in the workplace after asserting their FMLA rights and taking leave.  If you feel you are currently experiencing FMLA retaliation in the workplace or were terminated after taking FMLA leave, contact us to discuss your potential case.


Contact us for a no-obligation confidential consultation with our employment law team.

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