Your FMLA Rights: Inability to Return to Work After 12 Weeks

The Family and Medical Leave Act ("FMLA"), 29 U.S.C. 2601, et seq., provides eligible employees with up to twelve work weeks of medical leave in a twelve-month period (or twenty-six weeks in certain situations involving military families). Employees can utilize that leave in several different situations, including for the birth and care of a child within one year of birth or when an employee has a serious health condition that makes the employee unable to perform the essential functions of his or her job.

Twelve weeks of medical leave, however, is the maximum amount of leave an employee may take. Recently, several potential clients have sought to challenge their terminations after they exhausted their twelve weeks of FMLA leave but were unable to return to work. Employees who exhaust their twelve weeks of FMLA and are unable to return to work lose the protections of the FMLA.

In other words, your employer may legally terminate you if you are unable to return to work after your twelve weeks of FMLA leave. While there may be an exception to this rule if your employer fails to notify you that your leave is being counted as FMLA leave, that exception has come under fire by several courts and may no longer exist.

If you believe you have been denied FMLA leave or have been terminated or disciplined for taking FMLA leave, contact Fett & Fields, P.C. at

Note: This blog entry is for general informational purposes only and should not be considered legal advice. You should always consult with an attorney before taking or refraining from taking any action in your individual situation.

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