FMLA Interference: Wrongful Termination While on Medical Leave in Delaware
It is illegal for an employer to fire you to prevent you from taking federal FMLA or Delaware Paid Family Leave. This is known as FMLA interference, and you can sue for lost wages, benefits, and job reinstatement.
Facing a severe illness, welcoming a new child, or caring for a dying parent is incredibly stressful. The last thing you should worry about is losing your livelihood while trying to take care of your family. To protect workers, the federal government established the Family and Medical Leave Act (29 U.S.C. § 2601 et seq.), which provides up to 12 weeks of job-protected, unpaid leave. Furthermore, Delaware employees are uniquely protected by the state's Paid Family and Medical Leave program under 19 Del. C. § 3701, which provides paid benefits for qualifying life events.
Unfortunately, some employers view medical leave as an inconvenience. Instead of supporting their staff, they engage in "FMLA interference." It is crucial to understand the difference between interference and retaliation. Retaliation occurs when an employer punishes you after you return from leave. Interference, however, happens when an employer fires you, demotes you, or heavily discourages you from requesting the leave in the first place, specifically to prevent you from exercising your legal rights.
Proving that a termination was an attempt to interfere with your medical leave requires strategic legal maneuvering. We highly recommend browsing our USA Lawyer Directory to find a dedicated Delaware employment rights attorney. A legal professional can help you assert your rights under both federal FMLA and Delaware state law to secure the compensation and job security you deserve.
Filing an FMLA Claim in Delaware
If you believe your employer interfered with your FMLA rights, you have the option to file a lawsuit directly in the United States District Court for the District of Delaware, Wilmington or pursue state-level claims through the Delaware Department of Labor, Wilmington.
Pregnant Workers Fired the Day Before Maternity Leave Begins
A classic example of FMLA interference involves expecting mothers. If you have submitted all the proper paperwork and Form WH-380-E, FED, U.S. Department of Labor, Certification of Health Care Provider for Employee's Serious Health Condition for your upcoming maternity leave, and your employer suddenly fires you just days before your scheduled delivery, they are likely interfering with your rights. Employers often attempt to mask this by claiming the termination was part of a sudden "company-wide layoff" or due to vague performance issues. Your attorney will aggressively scrutinize the timing of the termination to prove that the true motivation was to avoid holding your job open during your maternity leave.
Fired While in the Hospital or Caring for a Dying Parent
Medical emergencies do not operate on a schedule. If you are rushed to a hospital in Wilmington, or if you must suddenly travel to care for a terminally ill parent, the FMLA allows you to provide notice to your employer "as soon as practicable." If you call your manager from the emergency room to request emergency medical leave, and they respond by terminating your employment for "job abandonment" or "unexcused absence," they have committed blatant FMLA interference. An attorney can use your hospital admission records to prove that your request for leave was legally valid and the termination was unlawful.
The 'Key Employee' Exemption to FMLA Reinstatement
Employers sometimes try to use the "key employee" exemption to discourage workers from taking leave. Under federal law, a key employee is a salaried FMLA-eligible worker who is among the highest-paid 10% of all employees within 75 miles. An employer can deny reinstatement to a key employee if doing so would cause "substantial and grievous economic injury" to the business. However, some employers falsely label workers as key employees simply to frighten them out of taking leave. Your lawyer can force the company to open their accounting books to prove whether or not your absence truly caused severe economic injury.
Proving Your Firing Was Leave-Related, Not Performance-Based
To win an FMLA interference case, you must prove that you were entitled to the leave and that the employer's actions prevented you from taking it. Employers will almost always fabricate a "performance issue" to justify the firing. Your attorney will counter this by presenting your past performance reviews, emails praising your work, and records showing that you were never disciplined until the exact moment you requested medical leave. This timeline evidence is often the most compelling factor for a judge or jury.
How Much Does it Cost in Delaware?
The federal FMLA is a powerful statute because it contains a "fee-shifting" provision. This means that if you win your lawsuit, the court can force your employer to pay your attorney's fees.
| Expense Type | Estimated Cost in Delaware |
| Federal Court Filing Fee | $405 (U.S. District Court) |
| Attorney Representation | Often handled on a contingency basis ($0 upfront) |
| Employer-Paid Attorney Fees | Mandated by the judge if the plaintiff wins |
| Liquidated Damages | Double back-pay awarded for willful violations |
How Long Does the Process Take?
Under the FMLA, you generally have two years from the date of the interference to file a federal lawsuit (or three years if the employer's violation was "willful"). Once a lawsuit is filed in Delaware federal court, the litigation process can take 18 to 24 months. However, because the financial penalties for losing an FMLA case are so severe for employers (including paying your legal fees), many companies choose to offer a substantial settlement within the first 6 to 9 months to avoid a trial.
Frequently Asked Questions (FAQ)
Am I eligible for FMLA in Delaware?
To be eligible, you must have worked for your employer for at least 12 months, have worked at least 1,250 hours during the previous 12 months, and work at a location where the company employs at least 50 people within a 75-mile radius.
Can my employer force me to use my vacation days first?
It depends on whether your leave is taken under federal law or Delaware's state paid leave program. Under the federal FMLA (29 C.F.R. § 825.207), an employer is legally permitted to require you to substitute accrued paid time off (PTO) or vacation days concurrently with unpaid FMLA leave. In sharp contrast, under Delaware's Paid Family and Medical Leave program (19 Del. C. § 3701, as amended by Delaware House Bill 128), employers are strictly prohibited from forcing employees to exhaust accrued PTO before or while receiving state paid leave benefits. An employer and employee may only agree to use PTO on a purely voluntary, mutual basis to "top off" benefits up to regular wages.
What happens to my health insurance if I am fired during leave?
If you are wrongfully fired, your employer may immediately cut off your health insurance. Your attorney will sue for the cost of your replacement COBRA premiums as part of your total financial damages.
Does FMLA interference apply if I am just asking for paperwork?
Yes. If you simply ask your HR department for the FMLA request forms and they immediately fire you, that constitutes unlawful interference, even if you had not officially submitted the application yet.
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