Ask The Lawyer By: Daniel A. Gwinn, Esq, Does FMLA Still Apply?


QUESTION: The company I work for has been badly hurt by Covid-19. In the past three months, almost half the staff has been laid off or put on a reduced schedule. We used to have about 75 people working here; now there are only 40. I am scheduled for non-elective surgery in a couple of weeks, which will take me off work for at least six weeks. I’m worried that I’ll be laid off if I go out on leave, and am thinking of canceling the surgery, even though that is not a safe option. Do I have any protection?

ANSWER: From the facts you provide, your employer might still be covered under the federal Family and Medical Leave Act, and you might be eligible for unpaid leave. Under the FMLA, employees may receive up to 12 weeks unpaid leave for a serious health condition that prevents them from performing the essential functions of their job. An employee returning from leave must be returned to his or her job or to a similar position if possible. The law also allows employees to take leave for the birth of a child, and time off to care of a spouse, child, or parent who has a serious health condition.

Whether you are eligible to receive FMLA leave – and be restored to your position – depends on whether you have worked for a private-sector employer for at least 12 months, have worked at least 1,250 hours in the 12-month period immediately before you plan to take leave and whether you work at a location where the employer has at least 50 employees within 75 miles.

While your employer does not currently have 50 workers on staff, the FMLA recognizes there may be fluctuations in workforce numbers. The Act defines an employer as a “person who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” So, if your employer had 50 or more employees until recently, it would still be considered covered under the law.

But being eligible for FMLA coverage will not guarantee that you can return to your position, or a similar position, when your leave is done if that position no longer exists. According to cases interpreting the FMLA, a worker returning from FMLA leave is not entitled to restoration “unless he would have continued to be employed if he had not taken FMLA leave.” Hoge v Honda of America Mfg., Inc, 384 F 3d 238 (CA 6, 2004). If you would be laid off whether you took leave or not, the FMLA will probably not protect you.

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By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
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