Under the FMLA, an eligible employee may take up to 12 weeks of leave during any 12-month period for [the employee’s own serious health condition/the birth, placement or adoption of a child/the care of a spouse, child, or parent who has a serious health condition/active-duty orders/the care of a covered service member]. This leave is called FMLA leave.
The FMLA also gives the employee, after [his/her] leave, the right to be restored by the employer to the position held when the leave began, or to be given an equivalent position. It is unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise any of these rights.
To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Plaintiff] was entitled to FMLA leave;
Third: [Plaintiff] gave [Defendant] proper notice of [his/her] need for leave; and
Fourth: [Defendant] [describe interference, e.g., refused to allow leave, refused [Plaintiff] reinstatement, discharged [Plaintiff], failed to maintain benefits].
For the first element, [Plaintiff] was “eligible” for FMLA leave if:
(b) [Plaintiff] worked for [Defendant] for at least 1,250 hours during the 12-month period before the date any FMLA leave was to begin.
[A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical facility, or continuing treatment by a healthcare provider. Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, and other similar conditions do not meet the definition of a “serious health condition” and do not qualify for FMLA leave.]
For the third element, [Plaintiff] “gave proper notice” to [Defendant] of [his/her] need for FMLA leave if [he/she] notified [Defendant] of the need to take FMLA leave in a timely manner and in a way that alerted [Defendant] that [his/her] absence might qualify as FMLA leave – even if [Plaintiff] did not expressly mention the FMLA.
If [Plaintiff] knew of the need for leave more than 30 days before the leave was to begin, [he/she] was required to give [Defendant] notice at least 30 days before the leave was to begin. If [Plaintiff] knew of the need for leave less than 30 days before the leave was to begin, [he/she] was required to give [Defendant] notice as soon as was reasonably possible.
For the fourth element, you must determine whether [Defendant] [describe interference].
[Including Affirmative Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide whether [Defendant] has established [his/her/its] affirmative defense.
It is lawful for an employer to [describe interference] for reasons unrelated to an employee’s [FMLA leave/attempt to take FMLA leave]. To establish its affirmative defense, [Defendant] must prove by a preponderance of the evidence that [he/she/it] [describe interference] for reasons that were unrelated to [Plaintiff]’s [FMLA leave/attempt to take FMLA leave]. Put another way, [Defendant] must prove that [he/she/it] would have [describe interference] even without the [FMLA leave/attempt to take FMLA leave].
If you find that [Defendant] established [his/her/its] affirmative defense, you will not decide the issue of [Plaintiff]’s damages. But if you find that [Defendant] has not established [his/her/its] affirmative defense, you must decide the damages issue.]
[Without Affirmative Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide the issue of [Plaintiff]’s damages.]
The measure of damages for [Plaintiff] is either lost wages and benefits or other expenses incurred because of [Defendant]’s FMLA violation. [Plaintiff] can recover lost wages and benefits, or [he/she] can recover other expenses incurred because of [Defendant]’s actions – but not both.]
If [Plaintiff] proved that [he/she] lost wages or benefits because of [Defendant]’s FMLA violation, then [Plaintiff] may recover net lost wages and benefits from the date of [describe interference] to the date of your verdict.
If you find that [Plaintiff] did not directly lose pay or benefits because of [Defendant]’s FMLA violation, then you may award [Plaintiff] the actual monetary loss that directly resulted from [Defendant]’s FMLA violation. This amount of damages cannot exceed [12/26] weeks of [Plaintiff]’s wages or salary.
[Mitigation of Damages: You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to “mitigate” those damages. For purposes of [name of plaintiff’s] claim for lost pay, the duty to mitigate damages requires [Plaintiff] to be reasonably diligent in seeking substantially equivalent employment to the position [he] [she] held with [Defendant]. To prove that [Plaintiff] failed to mitigate damages, [Defendant] must prove by a preponderance of the evidence that:
(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.
If you find that [Defendant] proved by a preponderance of the evidence that [Plaintiff] failed to mitigate damages, then you should reduce the amount of [Plaintiff]’s damages by the amount that could have been reasonably realized if [Plaintiff] had taken advantage of an opportunity for substantially equivalent employment.]
