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Is This a Violation of the Family Medical Leave Act?

My brother received a promotion several weeks ago. He works at a restaurant that is part of a regional chain of restaurants. About ten days after he received his promotion he had to be rushed into emergency surgery to remove his appendix. The doctor did not clear him to work after surgery for about two weeks. During that time his employer demoted my brother and gave the position to another employee. The employer told my brother he was demoted because he was absent from work for two weeks. The employer was aware the absence was for medical reasons. My brother has been working for this restaurant for over a year, usually about 50 hours a week. This particular restaurant location does not employ 50 or more employees. This particular chain has dozens of locations throughout the region, but the next closest location to my brother's work site is more than 100 miles away. The employer does employ hundreds employees, but the employees are scattered across numerous restaurant locations in about a half dozen states. No one restaurant employs more than 50 employees. Given all this information, does my brother qualify for protection under the FMLA?

Public Comments

1. No. The company must employ over fifty employees within a 75 mile radius or there is no FMLA eligibility. But it still isn't ethical.
2. From what I understand it was legal for the company to hire someone else for the job. However, when your brother came back to work from FMLA they have to offer him a position equal to the one he left in benefits and pay. If they have not met those conditions then yes they are in violation. Check the source for more details. Edit: Actually if what you said is true about the number of employees in the surrounding area then he might not be eligible. However I would leave that up to the DOL to figure out.
3. Your brother does not qualify for standard FMLA leave, but many states have increased coverage to people who would otherwise not qualify. If you could update us with the state your brother works in, we could give a more accurate answer.