If my employer recently threatened to fire me if I don’t come to work and choose to be present at my child’s birth instead, is this legal?

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If my employer recently threatened to fire me if I don’t come to work and choose to be present at my child’s birth instead, is this legal?

Does this violate my FMLA rights?

Asked on November 24, 2012 under Employment Labor Law, Colorado

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Let's try and understand FMLA here.  FMLA, according to the Department of Labor, provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • for the birth and care of the newborn child of an employee;
  • for placement with the employee of a child for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.


Do you fit with in the criteria here?  Does your employer?  Have you applied for FMLA leave?  All this matters.  Please call the Department of Labor at 1-866-487-2365 about your specific case.  Good luck.


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