My FMLA Was Denied. What Now?
The Family and Medical Leave Act (FMLA) is a federal law that provides job-protected leave for employees who take time off from work to care for their own health or a family member. Certain employers must provide FMLA leave, and it is voluntary for others.
Unfortunately, lawyers often hear from new clients, “My FMLA was denied! Now what?” Sometimes employers deny an employee’s FMLA request. Where an employee had their FMLA denied wrongfully, they should consult with an employment law attorney like O’Connor, Parsons, Lane & Noble about what to do next.
What Is the Family and Medical Leave Act?
The FMLA provides up to 12 weeks of unpaid leave within a 12-month period to employees who need to care for themselves or close relatives.
Additionally, it provides 26 weeks of leave within a 12-month period for employees to care for close relatives who are injured servicemembers. The employee must have worked for the employer for at least 12 months and a minimum of 1,250 hours. FMLA is mandatory for employers with 50 or more employees within a 75-mile radius.
Qualifying Health Conditions
You can take time under the FMLA to care for yourself or your close relative for serious health conditions. Close relatives include spouses, children, or parents. Here are some of the most common serious conditions that qualify for FMLA leave:
- Conditions requiring an overnight stay in a medical care facility,
- Conditions that incapacitate you or your family member for more than three consecutive days and require ongoing medical treatment,
- Chronic conditions that cause you or your relative to be incapacitated occasionally and require at least biannual medical treatment, and
- Pregnancy.
It also covers time off for the birth of a child or adoption.
What Benefits Does the FMLA Provide?
The FMLA guarantees that your employer must grant leave to employees in certain situations. Here are some of the other benefits that follow the time-off requirement:
- Your employer must continue your health insurance during the time off, although you might have to make your normal contributions;
- Your employer must give your job back upon your return or place you into a nearly identical role;
- Time off cannot be a basis for employment retaliation, such as in hiring, promotions, or disciplinary processes; and
- If you have any paid time off saved up, you can use that in combination with your FMLA leave to continue receiving pay.
Employees may take their FMLA leave all in one block or broken up into smaller chunks for occasional absences.
New Jersey Adds Its Own, Stronger Protections
Here’s something the federal law alone doesn’t tell you. New Jersey has its own leave laws that can apply even when the FMLA doesn’t, or that fill the gaps it leaves.
The New Jersey Family Leave Act (NJFLA) provides job-protected leave to care for a family member or bond with a new child, and it reaches smaller employers than the FMLA does, so some workers who don’t qualify federally still qualify under state law. Separately, New Jersey Family Leave Insurance and Temporary Disability Insurance can provide partial wage replacement during covered leave, which is real money the unpaid FMLA doesn’t offer. Because the federal and state programs interact in complicated ways, it’s worth having someone sort out which ones apply to you.
The NJFLA covers employers with 30 or more employees, and employees are generally eligible after 12 months on the job and 1,000 hours worked in the past year. It provides up to 12 weeks of leave in a 24-month period, and its definition of family is broader than the FMLA’s, reaching siblings, grandparents, grandchildren, in-laws, domestic and civil union partners, and others with a close, family-like relationship. One important difference: the NJFLA covers caring for someone else and bonding with a new child, but not your own serious health condition. For your own health, the FMLA and Temporary Disability Insurance are usually the relevant programs.
New Jersey’s Earned Sick Leave Law can also help at the edges. Most employees earn up to 40 hours of paid sick leave a year, which can be used for their own illness, a family member’s care, and certain other reasons. It won’t cover a long absence, but it can keep a paycheck coming during shorter ones, and it comes with its own protection against retaliation.
What Happens If My FMLA Is Denied By My Employer?
If your employer denies your FMLA claim, you have several options. You can file a complaint with the Department of Labor or file a lawsuit in court.
Your attorney can help you figure out the best course of action in your specific situation.
File a Complaint with the Department of Labor
If your employer denies your FMLA, you can make a complaint to the Wage and Hour Division of the United States Department of Labor. The U.S. DOL oversees the FMLA. They will conduct an investigation into your complaint and confirm whether your employer denied your FMLA rights wrongfully. The DOL will try to work with you and your employer to resolve the problem. If the DOL denies your claim, you can appeal their decision.
File a Private Lawsuit
Employees may file a private complaint under the FMLA in any federal or state court. They must generally do so within two years after the last violation. That time limit stretches to three years for willful violations of the FMLA. It is up to the court to determine whether the violations were willful. Employees can recover damages for losses or harm suffered as a result of their FMLA denial.
Can You Be Fired If Your FMLA Is Denied?
Your employer can not retaliate against you for exercising your rights under the FMLA. That means whether you make an FMLA request or appeal their FMLA denial to the DOL or in a private lawsuit, they cannot take adverse employment action against you. If your employer demoted you, reduced your work hours, or terminated your employment, and the only reason was that you exercised your rights, you may have a claim for retaliation. An attorney can assess your situation and determine if your employer violated your rights. If so, they can help you pursue your legal claim.
What to Do Right After a Denial
Start by asking your employer to put the reason for the denial in writing. Many denials come down to paperwork: an incomplete medical certification, a missed notice requirement, or a disagreement about whether you meet the hours or tenure rules. If the problem is an incomplete certification, federal rules generally require the employer to tell you what’s missing and give you a chance to fix it.
Keep copies of everything, including your request, any certification your provider completed, and every email or letter about the leave. Check whether New Jersey’s own leave programs cover you even if the FMLA doesn’t. And if you’re disciplined or pushed out after asking for leave, write down what happened and when, since the timing is often the strongest evidence of retaliation.
Medical Certification: Where Many Denials Start
Your employer can require a medical certification from your health care provider to support leave for a serious health condition. Under federal rules, you generally have at least 15 calendar days to return it. If the certification comes back incomplete or unclear, the employer has to tell you in writing what’s missing and give you a chance to fix it before denying leave on that basis. If the employer doubts a complete certification, it can ask for a second opinion, but at its own expense and from a provider it doesn’t regularly employ. A denial that skips these steps deserves a closer look.
Notice: Your Obligations and Your Employer’s
When leave is foreseeable, such as a scheduled surgery or an expected birth, you generally need to give 30 days’ notice, or as much notice as is practicable if 30 days isn’t possible. You don’t have to use the words “FMLA” the first time you ask, but you do need to give enough information for your employer to recognize that the leave may qualify. Once you do, the employer generally has five business days to tell you whether you’re eligible and what it needs from you. An employer that never provided that notice can have trouble later arguing that you didn’t follow the rules.
Intermittent Leave and Reduced Schedules
When it’s medically necessary, you can take FMLA leave in separate blocks or on a reduced schedule, for example to attend chemotherapy, physical therapy, or recurring appointments, or during flare-ups of a chronic condition. Employers sometimes resist intermittent leave because it’s harder to plan around, but inconvenience alone isn’t a lawful reason to deny it. For planned treatment, you’re expected to make a reasonable effort to schedule it so it doesn’t unduly disrupt your employer’s operations.
Leave for Military Families
Beyond the 26 weeks of caregiver leave for a seriously injured servicemember, the FMLA also allows up to 12 weeks for certain “qualifying exigencies” when a spouse, child, or parent is on covered active duty or has been called to it. That can include attending military briefings and ceremonies, arranging child care, handling financial and legal arrangements, and spending time with the service member during rest and recuperation leave. Employers sometimes overlook these categories, which can lead to denials that don’t hold up.
Getting Your Job Back
When FMLA leave ends, you’re generally entitled to return to the same job or one that’s equivalent in pay, benefits, and other terms, even if someone covered for you while you were out. There’s a narrow exception for certain highly paid “key” employees, and the employer has to notify them of that status in advance. Being told your position was eliminated while you were on leave isn’t automatically lawful; the employer has to show you would have lost the job even if you hadn’t taken leave.
When FMLA Leave Runs Out
Twelve weeks isn’t always enough. If you still can’t return when your FMLA leave ends, you may have other protections. Under New Jersey’s Law Against Discrimination and the federal Americans with Disabilities Act, additional leave can sometimes be a reasonable accommodation for a disability, and an employer generally has to engage with you about it rather than firing you automatically when the clock runs out. Our article on what to do if your employer denied a reasonable accommodation explains how that process works.
Contact O’Connor, Parsons, Lane & Noble
O’Connor, Parsons, Lane & Noble are New Jersey attorneys helping clients with a variety of employment law issues. We can assist you with your claim under the FMLA to the U.S. DOL or in court. Our experienced attorneys will help you seek the compensation you deserve when your employer violates your rights under state or federal law. Contact us today to discuss your claim.