I returned from a justified FMLA leave to find that my employer had filled my position. Do I have to accept the new position that I have been placed in?

The FMLA generally prohibits an employer from taking retaliatory actions when you return to work after a period of unpaid FMLA leave. However, the employer is not required to reinstate you in exactly the same position that you occupied prior to the leave, in recognition of the fact that the employer may have had to hire someone to fill your role during the leave period. Because of this, the employer is only required to provide you with an equivalent position when you return—which does not have to be exactly the same as the position you occupied prior to FMLA leave, and may not even have to be paid at the same rate.

Do I have to take the 12 weeks of FMLA leave all at the same time?

No. Under the FMLA, you are simply entitled to take up to 12 weeks unpaid time off within the 12-month period, whether all at once or intermittently. For example, in cases where an employee is diagnosed with cancer that requires chemo treatment, that employee may need to take a few days off at a time in order to receive the treatment and recover from the side effects. This is entirely permissible under the FMLA. Additionally, the 12-month period need not be an actual calendar year, but can begin on the date when you began taking FMLA leave.

Do I have to provide notice of my FMLA leave?

Yes and no. You should provide as much notice as possible that you will be taking FMLA leave—30 days is reasonable if possible. However, under certain circumstances where you or a loved one suffer an emergency medical condition, that type of notice may be impossible and is not required. Therefore, the amount of notice that should be given depends upon the circumstances and the reason for the leave.

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Family Medical Leave Act

New Jersey Family Medical Leave Act Lawyers

FMLA Attorneys in Moorestown, NJ: Family Matters: Legal Advocacy for Your FMLA Rights in Burlington County, Camden County, Gloucester County, and Throughout South Jersey

We all know that sometimes life throws us unexpected curveballs and creates situations where we must deal with our own health problems and those of our loved ones. In these situations, you should be able to focus on recovering without fear of losing your job. This is why the federal Family Medical Leave Act (FMLA) and related New Jersey Family Leave Act (NJFLA) were enacted to provide protection for workers who are forced to miss work in order to care for themselves or a loved one. While the FMLA provides detailed protections for employees who must take time off work for specified reasons, employers often use an employee’s FMLA leave as an excuse to take retaliatory action in the form of termination, demotion or reduction in pay or benefits.

At Attorneys Hartman, Chartered, our skilled FMLA lawyers are dedicated to advocating for your rights when an employer fails to follow the letter of the law in Camden County or elsewhere in New Jersey. We know that serious consequences with respect to your financial stability and future career success are on the line when an employer takes retaliatory or improper actions after you have taken FMLA leave. Call or contact us today so that we can explain your rights and explore options to prevent your employer from derailing your future career success through improper retaliatory actions.

Protections Provided by the Family Medical Leave Act

The FMLA essentially requires employers to allow employees who take time off because of certain designated reasons to return to work after their period of leave is finished. Under the FMLA, if your employer is a public agency, elementary or secondary school or a private company that has at least 50 employees who work within a 75-mile radius, you are entitled to:

12 weeks of unpaid leave from work taken during a 12-month period, and
To return to either the same job you occupied prior to the leave or an equivalent position after your leave is complete.

To obtain these benefits, however, you have worked for a “covered employer” for at least 12 months, and you must have accumulated at least 1,250 hours of service working for that employer in the 12-month period preceding the leave. Further, you must take the leave for a reason designated within the FMLA, such as:

The birth or adoption of a child,
A serious medical condition,
To care for an immediate member of your family, such as a parent, child or spouse, who is suffering from a serious medical condition.

FMLA leave is also available to employees who must be absent from work due to certain situations involving a spouse, child or parent who is a member of the military on covered active duty, or who is called to covered active duty.

Seasoned Employment Lawyers at Attorneys Hartman, Chartered Fight to Establish Clients’ Rights Under the Family Medical Leave Act

Although your employer is entitled to see proof that your FMLA leave is justified, whether in the form of medical documents or otherwise, the employer must respect your rights while on FMLA leave and cannot request unreasonable amounts of information while you are on leave. Further, the employer cannot discriminate against you once you return from the FMLA leave. To establish a valid claim that your employer retaliated or discriminated against you, we will fight to show that:

Your period of leave was valid and protected under the FMLA,
Your employer took adverse employment action, such as termination, wage reduction or other discrimination in the workplace, and
The employer’s actions were taken because of the FMLA leave.

Schedule a Free Initial Consultation to Discuss Your FMLA Rights with Skilled Cherry Hill Employment Attorneys Hartman, Chartered

If you have suffered retaliatory actions after taking FMLA leave or have been improperly denied FMLA leave, call or contact the experienced Cherry Hill Family Medical Leave Lawyers at Attorneys Hartman, Chartered to explore options for protecting your rights today.

Frequently Asked Questions About the Family Medical Leave Act (FMLA)

The FMLA generally prohibits an employer from taking retaliatory actions when you return to work after a period of unpaid FMLA leave. However, the employer is not required to reinstate you in exactly the same position that you occupied prior to the leave, in recognition of the fact that the employer may have had to hire someone to fill your role during the leave period. Because of this, the employer is only required to provide you with an equivalent position when you return—which does not have to be exactly the same as the position you occupied prior to FMLA leave, and may not even have to be paid at the same rate.
No. Under the FMLA, you are simply entitled to take up to 12 weeks unpaid time off within the 12-month period, whether all at once or intermittently. For example, in cases where an employee is diagnosed with cancer that requires chemo treatment, that employee may need to take a few days off at a time in order to receive the treatment and recover from the side effects. This is entirely permissible under the FMLA. Additionally, the 12-month period need not be an actual calendar year, but can begin on the date when you began taking FMLA leave.
Yes and no. You should provide as much notice as possible that you will be taking FMLA leave—30 days is reasonable if possible. However, under certain circumstances where you or a loved one suffer an emergency medical condition, that type of notice may be impossible and is not required. Therefore, the amount of notice that should be given depends upon the circumstances and the reason for the leave.

Meet Your Team

Katherine D. Hartman, Esquire

Katherine D. Hartman is the Managing Partner in the Moorestown, New Jersey law office of Attorneys Hartman, Chartered, which has been named one of America’s Best Law Firms by U.S. News and World Report. She concentrates her practice in employment discrimination, criminal defense, police disciplinary matters, and other employment law issues. Katie has been practicing law for over thirty years. She was admitted to the New Jersey and Pennsylvania Bars in 1991, the Eastern District of Pennsylvania in November of 1993, the Third Circuit Court of Appeals in November of 2002, and the Supreme Court of the United States in October of 2002.

Katie has been awarded the highest (AV) rating for professional ability and high ethical standards, by Martindale Hubbell. Additionally, Katie has consistently been voted a Super Lawyer by New Jersey Magazine. Super Lawyers is a rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations. She was named one of the Top Forty Lawyers under Forty by the New Jersey Law Journal in 2002.

Michael C. Mormando, Esquire

Michael C. Mormando has been practicing law for over twenty years, and is a Partner at Attorneys Hartman, Chartered. Mike is an active member in the Burlington County Bar Association, he is a former Chair of the Bar Associations’ Criminal Practice Committee, and he formerly served as a member of the Supreme Court of New Jersey District Ethics Committee for Burlington County, District III-B. Mike also served two years as Councilman for Ward 3 in Delran Township, having been elected to the post in the November 2018 general election, and he currently serves as the Chair of the Delran Township Zoning Board.

Mike’s areas of practice include criminal defense, DUI defense, traffic violation defense, employment law, discrimination and whistleblower cases, unemployment compensation appeals, labor representation for collective bargaining units, employment contract review and negotiations, and defense in police disciplinary matters. Mike is approved by the Fraternal Order of Police (FOP) as a lawyer who can represent law enforcement officers who face disciplinary or criminal charges. Mike also represents small business owners concerning employment issues.