Camp Hill, PA asked in Employment Law for Pennsylvania

Q: What is the exact definition of "Attempt to exercise FMLA rights" under the FMLA prohibitions?

What are some examples of the below meaning of "attempt"? Does this mean such if an employee who already has intermittent FMLA and makes a claim or an attempted claim to attempt to exercise FMLA? If so can an employer terminate an employee for attempting to use even if FMLA was not approved for the situation?

FMLA Prohibition: An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised, or attempted to exercise any FMLA right.

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2 Lawyer Answers
Andrew S. Abramson
Andrew S. Abramson
  • Blue Bell, PA
  • Licensed in Pennsylvania

A: The definition of exercising a potential right to FMLA leave can be very broad, bottom line, is that if there is a good faith effort to ask for leave that could be protected as family medical leave, and action is taken against an employee due to that leave request, it may be considered retaliation. It is critical to review all facts concerning your employment, the leave request, and the retaliatory act in detail. Feel free to contact our office so we can obtain further information to evaluate your particular situation

Eva Zelson
Eva Zelson

A: Some serious medical conditions arise with very little warning and employees are not able to give 30 days advance notice of their FMLA leave as one might do in the case of pregnancy/maternity leave. When a medical emergency occurs suddenly and an employee wants to use FMLA, they must notify their employer of their intention to take leave due to a serious medical condition. Whether the employee asks for it by name or not, the employer must inform you whether or not FMLA is an option available to you based on your eligibility. If you are ineligible for FMLA at that time, they must give you the reason why within five business days. If you believe you were retaliated or discriminated against after presenting a need to use FMLA, contact an experienced FMLA attorney at an employment law firm to discuss the details of your case.

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