Many employees in the state of New York are eligible for paid leave under New York’s short-term disability law and paid family leave law, as well as unpaid leave under the federal Family Medical Leave Act (FMLA). These laws were enacted to help employees balance their individual health needs – as well as the needs of their family – with the ever-increasing demands of the American workplace. Not only do the New York state and federal leave laws promote family stability, but they provide a level of economic security which, one can argue, protects the very fabric of the American family. If you feel your rights have been violated, speak with an FMLA Lawyer now.

While this article focuses on the FMLA, not everyone is eligible for its benefits. In New York, employees that are ineligible for protections under FMLA to take job-protected leave may be eligible for short-term disability benefits or paid leave benefits as a result of certain family situations. In contrast to the federal FMLA, which only covers unpaid leave, New York’s short-term disability and paid family leave requirements cover a portion of an employee’s salary. The short-term disability coverage is available to employees who are dealing with an out-of-work injury or illness, while the Paid Family Leave law covers employees who must take leave to care for a newborn or adopted child, to care for a family member with a serious health condition, or because of the military deployment of a family member abroad.

The FMLA entitles eligible employees to take up to twelve weeks of unpaid leave from their jobs because of a serious health condition, for the birth or adoption of a child, or to care for a child, spouse, or parent who has a serious health condition. This federal statute only applies to employees who work for a company with at least 50 employees located within a 75-mile radius, who have worked for the company for at least a year, and who have clocked a minimum of 1,250 hours during the previous twelve months. Under the FMLA, employees are entitled to a maximum of twelve weeks’ leave in any twelve-month period.

When an employer denies its employees their rights to FMLA leave – or discriminates or retaliates against its employees because they actually took their FMLA leave – the employees typically have the right to sue for damages and reinstatement of their jobs. This is a means of holding their employers liable for interfering with or preventing them from taking FMLA to leave. To win on a claim of FMLA interference, employees must prove that they were an “eligible employee” under FMLA in terms of the length of time that they worked at the company, the number of hours that they worked in the prior twelve months since leave was last taken, as well as the size of the employer’s operations within the 75-mile radius of their workplace. Employees must also prove that they provided notice to the employer of their intention to take leave. In order to prevail on an FMLA claim, the employer must have actually denied the requested FMLA leave, or when considered objectively, the employer took actions that would discourage any reasonable employee from taking FMLA to leave.

In addition to FMLA interference, employers can be held liable for retaliation. Retaliation occurs when an employer takes certain adverse actions against the employee because he or she reported an FMLA violation to human resources or a company manager, or filed a lawsuit with the federal courts. Adverse employment actions include any type of employment action that is taken to dissuade a reasonable employee in the same position from exercising their rights under FMLA. Examples of FMLA-related adverse employment actions include negative performance reviews, demotion, or discharge. While there is a wide range of actions that qualify as an adverse employment action, it is important to understand that a simple lack of manners, petty slights by one employee to another, or minor annoyances suffered by the employee, are not considered adverse employment actions under the law.

A retaliation claim requires that the employees establish that they requested FMLA leave, that they are qualified for their position, that they suffered an adverse employment action such as a demotion or termination, and that an inference can be made from the circumstances that the adverse employment action is related to the employee’s attempt to exercise their FMLA rights. The timing of the adverse job action taken by the employer, if taken soon after a request for or taking of the FMLA leave, can result in an inference that the adverse action by the employer was related to the employee’s exercise of their FMLA rights. However, the courts in New York have held that a lapse of time beyond two months may break this causal inference.

While employers are prohibited from retaliating against their employees for taking FMLA leave, FMLA does not protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to FMLA leave. On the other hand, no matter how bad the employee’s performance, if the employee’s decision to request or take FMLA leave is just one motivating factor, in taking the adverse employment action the employer will be held liable for violating the law.

If you believe your employer is violating your right to paid or unpaid family leave, speak with an FMLA lawyer today for a free consultation.