If you take FMLA leave and your employer refuses to restore you to your job, or punishes you for taking it, you likely have a legal claim. The short answer is yes: under the federal Family and Medical Leave Act, your employer generally must hold your position, or give you a substantially equivalent one, when your leave ends. But there are important limits on who qualifies for that protection, and New York adds its own separate layer through the state Paid Family Leave program. When an employer violates either of those protections, the consequences can include back pay, reinstatement, liquidated damages, and attorney's fees.
Who the FMLA Covers
The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., applies to private employers that have at least 50 employees working within a 75-mile radius for at least 20 weeks in the current or prior calendar year. A lot of businesses in New York City fall below that threshold and are simply not subject to the FMLA. If your employer has 49 employees, the federal law does not apply, though other protections may still reach you.
Even when your employer is covered by the FMLA, you personally must qualify. To be eligible, you must have worked for the same employer for at least 12 months and must have logged at least 1,250 hours during the 12-month period immediately before your leave begins. That works out to roughly 24 hours per week. Part-time employees or employees who took extended time off earlier in the year may fall short of that hours threshold.
When both conditions are met, you may take up to 12 weeks of unpaid, job-protected leave in a 12-month period. Qualifying reasons include your own serious health condition, caring for a spouse, child, or parent with a serious health condition, bonding with a newborn or newly placed adopted or foster child, and certain qualifying military family circumstances. Military caregivers may be entitled to up to 26 weeks for a single injury or illness of a covered service member.
What "Holding Your Job" Actually Requires
When your FMLA leave ends, your employer must restore you to the same position you held before you left, or to an equivalent one. Equivalent means the same pay, the same benefits, the same shift and schedule, and substantially similar duties and responsibilities. Your employer cannot demote you, cut your salary, strip your core responsibilities, or move you to a less desirable location simply because you took leave.
There is one narrow exception called the "key employee" exception. If you are among the highest-paid 10 percent of employees working within a 75-mile radius of your worksite, your employer may deny restoration if it can demonstrate that reinstating you would cause substantial and grievous economic injury to the business. Your employer must notify you of your key employee status before or at the start of your leave and must give you the opportunity to return before it can lawfully deny reinstatement. Courts have read this exception narrowly, and it comes up infrequently in practice.
New York Paid Family Leave: A Separate, Broader Protection
New York's Paid Family Leave law, codified in Article 9 of the Workers' Compensation Law, provides a different kind of protection that covers far more employees. Unlike federal FMLA, NY PFL applies to almost every private employer in the state regardless of size. If you have worked for your employer for at least 26 consecutive weeks, you are eligible. Part-time employees who work fewer than five days per week regularly become eligible after 175 days of work.
NY PFL allows eligible employees to take up to 12 weeks of paid leave per year. In 2026, the maximum weekly benefit is $1,228.53, representing 67 percent of the New York State Average Weekly Wage. The program is funded through a small payroll deduction from employees, and most workers see only a modest reduction from each paycheck.
NY PFL covers three qualifying reasons: bonding with a newly born, adopted, or fostered child within the first 12 months, caring for a family member with a serious health condition, and addressing certain qualifying military family exigencies. One situation NY PFL does not cover is your own serious health condition. For that, the FMLA and the state Disability Benefits Law are the relevant protections.
When both the FMLA and NY PFL apply to the same qualifying reason (for example, bonding with a new child) the leaves run at the same time. You do not receive 12 weeks of FMLA protection followed by an additional 12 weeks of PFL. The total job-protected period for that qualifying reason is 12 weeks.
Under N.Y. Workers' Compensation Law § 203-b, your employer may not discriminate or retaliate against you for requesting or taking NY PFL. You are entitled to return to the same job, or a comparable one with equivalent pay and benefits, when your leave ends. If your employer refuses to reinstate you after NY PFL, you can file a discrimination complaint with the Workers' Compensation Board. The Board will schedule a hearing within 45 days, and a judge can order reinstatement, back wages, and attorney's fees.
What About Your Own Medical Leave?
If you need time off for your own serious health condition and you qualify for FMLA, that federal law is what protects your right to return to your job. The New York State Disability Benefits Law may provide partial wage replacement while you are out, but it does not carry the same independent job restoration requirements that the FMLA imposes on covered employers.
For employees working at smaller companies not covered by the FMLA, the NYC Human Rights Law under Administrative Code § 8-107 may still require your employer to provide a reasonable accommodation for your disability, which can include granting a leave of absence. NYC's human rights law applies to employers with four or more employees, which is a much lower threshold than the FMLA's 50-employee floor. Accommodation claims under the city law often arise alongside FMLA and PFL claims when someone has taken medical leave and been pushed out.
What Retaliation Looks Like When You Return
The FMLA prohibits two distinct categories of employer conduct. The first is interference: your employer cannot deny, restrain, or discourage you from taking leave you are entitled to, and it cannot condition your job security on giving up leave rights. The second is retaliation: your employer cannot discharge or otherwise discriminate against you because you exercised FMLA rights. Both prohibitions appear in 29 U.S.C. § 2615.
Retaliation is not always a termination letter the day you return. I represent employees who came back from leave technically reinstated, only to find their duties quietly hollowed out, their schedules changed to less favorable hours, or their access to clients, accounts, or meaningful projects gradually removed. Others return to discover that a performance improvement plan has been prepared in their absence, despite no prior history of discipline. Some face consistent hostility from supervisors that makes the position effectively untenable, leading eventually to a resignation that the law may treat as a constructive discharge.
The timing of adverse actions matters a great deal. Courts and agencies give significant weight to discipline, demotions, or terminations that follow closely on the heels of protected leave. If your performance was never an issue before you left, and suddenly it is the moment you return, that sequence is exactly the kind of circumstantial evidence that supports a retaliation claim.
What to Do If Your Employer Did Not Restore Your Job
If your employer interfered with your FMLA rights or retaliated against you for taking leave, you have options, and the deadlines for pursuing them are strict.
For FMLA claims, you can file a complaint with the U.S. Department of Labor's Wage and Hour Division, or you can file a private lawsuit in federal court. The general statute of limitations is two years from the date of the violation, extended to three years when the employer's conduct was willful. Remedies can include back wages, the value of lost benefits, front pay, and liquidated damages that can effectively double your recovery. Attorney's fees are also available.
For NY PFL retaliation, you submit a discrimination complaint on the required form to the Workers' Compensation Board. The Board schedules a hearing within 45 days, and a judge can order reinstatement, back wages, attorney's fees, and a civil penalty against the employer.
If your employer is too small for federal FMLA coverage but you have a disability accommodation claim under the NYC Human Rights Law, you can file with the NYC Commission on Human Rights or bring a direct court action. The city law carries strong remedies, including compensatory and punitive damages, that are not available under the FMLA.
These deadlines do not pause while you wait to see whether your employer eventually does the right thing. If something felt wrong when you returned from leave, such as a changed role, a sudden performance plan, or a cooler reception than your record warrants, I encourage you to contact my office as soon as possible.
I represent employees in New York City's five boroughs and Nassau County who have had their FMLA or NY PFL rights violated. If this situation sounds familiar, visit my pages on FMLA and Medical Leave and Retaliation and Whistleblower Claims, or contact my office directly to discuss what happened.
Frequently Asked Questions About Taking FMLA Leave in New York
Does every employer in New York have to provide FMLA leave?
No. The federal FMLA only applies to private employers with at least 50 employees working within a 75-mile radius. If your employer is smaller than that, you are not covered by federal FMLA. New York's Paid Family Leave law covers almost all private employers regardless of size, and the NYC Human Rights Law may separately require employers with four or more employees to provide a leave of absence as a reasonable accommodation for a disability.
I have worked for my employer for 10 months. Can I take FMLA leave?
Not yet under federal FMLA. You need at least 12 months of employment with the same employer before you are eligible. If your employer is covered by NY PFL, you may qualify there after 26 consecutive weeks of employment. If you have a disability requiring accommodation, the NYC Human Rights Law may provide some protection regardless of tenure.
Can my employer give me a different job when I return from FMLA leave?
Only if the new position is truly equivalent (same pay, same benefits, same shift, and substantially similar duties and responsibilities). A lateral move that removes meaningful work, strips key accounts, or reduces decision-making authority still violates your restoration rights even if the job title and salary remain the same. Courts look at the practical reality of the position, not just the paperwork.
What is the 'key employee' exception and am I likely to be affected by it?
The key employee exception allows an employer to deny reinstatement to a salaried employee who falls within the highest-paid 10 percent of the employer's workforce within a 75-mile radius, but only if reinstatement would cause the employer substantial and grievous economic injury. The employer must notify you of your key employee status and give you a chance to return before denying reinstatement.
Does New York Paid Family Leave cover time off for my own illness?
No. NY PFL covers bonding with a new child, caring for a seriously ill family member, and certain military family situations. It does not cover your own medical condition. If you need leave for your own serious health condition, the FMLA is what protects your job if you qualify, and the state Disability Benefits Law may provide partial wage replacement during your absence.
Can my employer fire me while I am on FMLA leave?
Not for taking leave. The FMLA prohibits both interference with leave rights and retaliation for exercising them. However, your employer may still terminate you for a legitimate reason that is genuinely independent of your leave, such as a company-wide layoff that includes your position. If the termination is selective or the timing is suspicious (you are let go while others in comparable roles are retained) those facts are worth discussing with an attorney.
I came back from leave to find my job title unchanged but my responsibilities cut significantly. Is that a violation?
It may be. The FMLA requires restoration to a position with substantially similar duties, not merely the same title. Employers sometimes comply on paper by preserving a title and salary while quietly eliminating the meaningful work. If your role was materially diminished (key accounts reassigned, decision-making authority removed, meaningful projects reallocated to others) that pattern can support an interference or retaliation claim.
What are the deadlines for filing an FMLA or NY PFL claim?
For FMLA claims, you generally have two years from the date of the violation to file, extended to three years if the employer's conduct was willful. For NY PFL discrimination complaints, you file with the Workers' Compensation Board, which schedules a hearing within 45 days. These deadlines are firm. If you believe your rights were violated, you should contact an attorney promptly rather than waiting to see how things develop.