HAVE A CASE YOU'D LIKE REVIEWED? contact US (212) 206-8166


Protecting the Rights of New York Employees Under the Family and Medical Leave Act

Both state and federal law protect the right of New York employees to take leave from work in many different circumstances without losing their jobs. While many workers have heard of the Family and Medical Leave Act (FMLA), fewer understand exactly how it protects them or whether an employer is adhering to all of the Act's requirements. The advice of an experienced New York employment law attorney can help workers protect their legal rights in the workplace when it comes to FMLA issues.

What Is the Family and Medical Leave Act?

The Family and Medical Leave Act was passed by Congress and signed into law by President Bill Clinton in February 1993. The Act allows qualified employees 12 weeks of unpaid leave per year. During this time, the employer cannot terminate the worker's employment or group health benefits. The FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees within a 75-mile radius. To qualify, the employee must also have worked for the employer for 12 months and worked 1,250 hours during those 12 months. Eligible employees may use this leave:

  1. For the birth or care of newborn children
  2. For the adoption of children, or the placement of a foster child with the employee
  3. To care for an immediate family member (spouse, parent, or child) with a serious health condition
  4. As medical leave for the employee's own serious health condition

Employees must make a formal request for protected leave under the Act and document the circumstances that make them eligible. Many employees can accomplish this with medical records, a birth certificate, or other such documentation. An eligible employee who takes leave under the FMLA is entitled to be restored to the same or equivalent position upon returning from leave (provided the employee can still perform the essential functions of that position).

How an Employment Law Attorney Can Help Workers Protect Their Rights to Leave

An attorney can help employees at every step of the FMLA process. In the early stages of the process, an attorney can sometimes help resolve an FMLA claim through effective communication with the employer's human resources department, management, or legal team. An attorney can also help the employee respond to any challenges the employer presents to the FMLA claim. An employer may claim the employee is not qualified due to an insufficient number of months or hours of service, or because the employer does not have a sufficient number of workers within a 75-mile radius. With careful analysis, however, an attorney may be able to overcome these objections.

If an employer denies an initial request for FMLA leave, the fight is far from over. Sometimes, the employer lists a specific reason (such as insufficient documentation of the medical condition) that the employee can easily remedy. In other cases, the employee must submit the request to someone higher up the chain of command to ensure that it receives the attention it deserves. Sometimes, an attorney must resubmit the request with a letter explaining why the employee is, in fact, eligible for protected FMLA leave, and what legal consequences the employer faces if it persists in denying the request.

Ultimately, if FMLA leave is wrongfully refused or, quite commonly, the employee is terminated in retaliation for taking FMLA leave, the wronged employee needs to consult with an attorney about the best course of action to take. Certain deadlines apply to the filing of a suit or administrative action to enforce FMLA rights and such rights can be lost if these deadlines are missed.

Other Rights to Take Leave

Employees should understand that FMLA is not the only law that entitles them to take leave. The Americans With Disabilities Act, for example, requires employers to make reasonable accommodations for an employee's disability (if they will not cause employers an undue hardship). A short medical leave can thus qualify under the ADA even if the employee is not eligible for an FMLA claim. The State of New York has also a temporary disability program, which pays eligible employees who are temporarily unable to work due to disability up to half of their regular salary. And New York City has adopted the Earned Sick Time Act (Paid Sick Leave Law) which requires employers with five or more employees to provide up to 40 hours of paid sick leave per year, and employers with less than five employees to provide up to 40 hours of unpaid sick leave. An employee who is eligible for these leave rights cannot be terminated or retaliated against for exercising them. If you believe that you were wrongfully denied leave from work, a New York employment law attorney can help you determine whether any leave provisions protect you.

Experienced Employment Representation for Leave Claims and Other Employee Rights

Employees have leave rights that both state and federal employment laws protect. An experienced New York employment law attorney can help you determine whether your employer violated these rights, and how best to assert these rights when they were violated. Call (212) 206-8166 today to schedule a consultation with Adam Braverman at Braverman Law PC, who has years of experience protecting the rights of workers in the New York City area.


We will use our years of expertise and experience to fight for your rights as a business owner or employee. We have the skills, dedication, and knowledge to protect your best interests.