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Boss may be violating law by denying leave to care for ailing spouse

It is illegal for employers to retaliate against workers who qualify for the leave, experts say.

Family Medical Leave Act

Family Medical Leave Act Photo Credit: Getty Images/iStockphoto

DEAR CARRIE:  I have worked in my current union position for over 23 years. My husband fell ill a few years ago, and I take a month off each year under the federal Family and Medical Leave Act to care for him when others aren’t around. This was never an issue with my old manager. But my new manager threatened to suspend me if I attempt to take an FMLA  leave. Is he allowed to do so? If not, where can I report him?—Upended Leave

DEAR UPENDED: It’s illegal for employers to retaliate against employees who qualify for the leave.

As an alternative, you could qualify for time off under New York’s new Paid Family Leave law, sort of a paid version of the FMLA. Both of those statutes prohibit retaliation. Both laws also permit eligible employees to take time off to care for family members who are seriously ill.  And both allow for intermittent leave.

Under the state statute, eligible employees this year are entitled to eight weeks of paid leave at 50 percent of their average weekly wage, capped at 50 percent of the state average weekly wage, said Wayne Schaefer of the Schaefer Law Group in Smithtown. (Half the current average weekly rate is $652.96.) By 2021 those entitlements will max out at 67 percent of an employee’s average weekly salary for up to 12 weeks annually.

The FMLA entitles eligible employees to take up to 12 weeks of unpaid leave during any 12–month period. Both laws provide job protections. Employees are entitled to return to the same job or a comparable job, Schaefer said.

If your supervisor were to deny the leave, his action could also be a violation of the Americans with Disabilities Act, Schaefer said.

“An employee will be found to have stated a claim of discrimination on the basis of an association with a disabled individual, where she demonstrates,” he said,  “that: she was qualified for the job at the time of the adverse employment action;  she was subjected to adverse employment action;  she was known by her employer at the time to have a relative or associate with a disability; and  the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision.“

So what does all this information add up to?

“It would be safe to say that the employer, in this case, proceeds at their peril,” he said. “If this employee is fired, suffers a loss of pay or is otherwise subject to adverse employment action, she should definitely consult with an attorney.”

To file a complaint regarding the FMLA call the U.S. Labor Department at 516-338-1890 or 212-264-8185. For Paid Family Leave complaints call 844-337-6303.

DEAR CARRIE: I am a small employer, and I recently put some of my employees on salary. Can I require them to work more than 40 hours a week? And how does it work when they take days off for various reasons? –New Status

DEAR NEW:  First with the hours. Generally labor laws don’t limit the hours that adult employees can be asked to work, with very few exceptions.

 If they are exempt because they are managers or their jobs require a college degree, for example,  you don’t have to pay them for any extra hours.

But if they are hourly, or nonexempt, workers who happen to be paid a salary, you have to pay them for all the hours they work and overtime when they work more than 40 hours a week.

As for exempt employees, you can legally dock their pay if they miss a full day for personal reasons,

Go to http://bit.ly/NYleave for more on New York's Paid Family Leave law.

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