Baltimore Family and Medical Leave Act Defense Attorney

Ken C. GauveyPersonal Injury Attorney

The Federal Family and Medical Leave Act (FMLA) was enacted by Congress and took effect on August 5, 1993. The FMLA Act was intended to balance the demands of the workplace with the needs of families in situations where a worker might have to be away from work for an extended period of time. Congress envisioned that the FMLA would promote stability and economic security for families as well as promote a national interest in preserving the family integrity by allowing leave for certain medical reasons. The FMLA sought to accomplish this goals and aspirations by accommodating the legitimate interests of both employers and employees alike. Congress hoped by enacting this legislation that both employers and employees would be benefited.

While the Family and Medical Leave Act, it is applicable in the State of Maryland, and Baltimore. The law entitles eligible employees to an absence of up to a total of 12 workweeks of unpaid leave in any 12-month period for any of the following reasons:

(a) the birth of a child, and to care for the newborn child;

(b) the placement with the employee of a child for adoption or foster care;

(c) necessary care for the employee’s spouse, child, or parent with a serious health condition, or an adult child who cannot care for himself or herself;

(d) a serious health condition that makes an employee unable to perform the functions of the employee’s job; or

(e) any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on (or has been notified of an impending call to) “covered active duty” in the Armed Forces. This provision was effective January 16, 2009, and was amended on October 28, 2009.

In practice the theory behind the FMLA is simple, however, problems often arise due to the sensitive facts in specific cases. These factual issues can make it easy for an employer to make an inadvertent mistake that can bring steep and harsh penalties.

What are the Employee Eligibility Requirements?

Under the FMLA, only “eligible employees” are entitled to utilize the leave provided under the FMLA. In addition, this applies to eligible employees who are working for employers that have at least 50 employees. The Act specifically defines what constitutes an “eligible employee”, and sets forth an eligible employee is an employee who has been employed for at least 12 months by the employer from whom the leave is requested and who has rendered at least 1,250 hours of service to that employer during the preceding 12-month period. It should be noted that any employee who’s employed at a worksite at which the employer employs fewer than 50 employees if the total number of employees employed by that employer within a 75-mile radius is also fewer than 50 is excluded from the definition.
While the FMLA is generally available to those employees who are considered to be is available “eligible employees”, the 50-employee requirement does not apply to public employers and certain educational institutions.

What are an Employer’s Responsibilities?

Employers are the ones who ultimately make the decision if an employee can utilize the leave of the FMLA. In all circumstances, it is the employer’s responsibility to designate leave as FMLA-qualifying and to give prompt notice of the designation to the employee. Generally, when an employee requests to utilize FMLA leave, an employer must make a determination within five business days of learning of the reasons for the request. Although employees are required to provide enough information to establish their FMLA absence eligibility, an employee’s request for time off does not have to specifically request FMLA leave. Each agency must obtain the required information and decide whether an FMLA absence is appropriate.

An FMLA Guide that was compiled by the Maryland Department of Budget and Management provided a basic list for employers to consider when making a determination to ensure that when an employee makes a request for time off, a manager or supervisor will:

  • Ask appropriate questions about the reasons for the employee’s time off;
  • Recognize that the requested time off, whether paid or unpaid, can be counted as an FMLA absence;
  • Comply with applicable agency policies regarding forwarding information about the absence of the agency Human Resources Office ;
  • Promptly inform the employee regarding whether the requested time off, whether paid or unpaid, can be counted as an FMLA absence;
  • Inform the employee of his/her rights and obligations while the employee is on an FMLA absence, and
  • Preserve management’s right to provide only as much leave as is required by law.

In addition to these questions, employers are required to post and keep posted a notice, approved by the Secretary of the U.S Department of labor, explaining rights and responsibilities under the FMLA.

What are Unlawful Acts by Employers?

Employers, supervisors, and managers are the ones who most often interact with the employees and therefore are the ones who must decide if an employee is entitled to utilize the leave provided by the FMLA. The FMLA provides protections primarily to those who request leave or assert FMLA rights. The law prohibits interference with an employee’s rights under the law, and with legal proceedings or inquiries relating to an employee’s rights. The law contains the following protections:

  • An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the FMLA.
  • An employer may not discharge or in any other way discriminate against a person (including non-employees) for opposing or complaining about any unlawful practice under the Act.
  • All persons (whether or not an employer) are prohibited from discharging or in any other way discriminating against any person (including non-employees) because that person: has filed a charge of a violation of the FMLA; has given or is about to give any information in connection with an inquiry or proceeding relating to a right under the FMLA; or has testified, or is about to testify, in a proceeding relating to a right under the FMLA.

Violations of the FMLA include denying the exercise of rights provided by the Act, as well as interfering with the exercise of an employee’s rights under the FMLA. Discouraging an employee from using FMLA leave, or manipulating circumstances relating to eligibility under the Act are forms of interference and are prohibited.

What are the Penalties for Violating the FMLA?

An employer who violates the FMLA could be subject to certain penalties from the Department of Labor’s Wage and Hour Division, as well as individual lawsuits from employees Companies can be required to pay:

  • Back pay: Wages, salary or fringe benefits the employee should have earned during leave.
  • Actual monetary losses sustained: Which constitutes, money lost by the employee, other than wages, as a result of the FMLA violation. This amount can be equal to up to 12 weeks’ wages
  • Liquidated damages: Back pay and actual monetary losses sustained, plus interest. These type of damages are typically only awarded if the employer’s FMLA violation was found to be intentional
  • Penalties for not posting notice signs: A covered employer must display this poster even if it has no eligible employees. An employer who willfully violates this posting requirement may be assessed a civil money penalty of $110 for each separate offense.

In addition, an employee may be entitled to appropriate equitable or other relief, including employment, reinstatement promotion, or any other relief tailored to the harm suffered.

Contact a Baltimore Employment Lawyer If You Are a Party to a Family Medical Leave Act Complaint

If you are having a dispute and are thinking of taking it to court, or are being sued, we invite you to contact the Law Practice of Ken C. Gauvey at (410) 346-2377 for a complimentary consultation.


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