My wife was recently hospitalized and had to have surgery for a staph infection. She was not yet cleared to go back to work and called her boss to tell her when she would return. Her boss told her that they had to let her go because they had to replace her. Her boss told her one week before this to take as much time as she needed that her job was still there. Is this legal or can we do something about it?

How many employees does the company have within 75 miles of your wife's job site? Has she worked there more than a year? Did she work more than 1,250 hours during the past year?

My wife has worked there for six months. She worked for the same company when we lived in California for over 2 years and 10 months. Then we moved to Arizona in April of 2005 and she started working there in July. The Company has about 50 employees in the Phoenix area.

This is kinda interesting. FMLA does say that ALL time put in for an employer applies toward determining eligibility, but to my knowledge, FMLA does not give any kind of a qualifier on length of time between stints of employment. Exactly how long was it from the time she left them until the time that she returned to them.

There could be a possible FMLA violation, but I would have to know significantly more detail. In other words, make me a timeline of events and what the employer was told at each major point, and their response to her.

In this case, it's the 1,250 hours requirement that would make the difference. She's met the 12 month minimum requirement since the law does not require that the 12 months be consecutive. However, for FMLA to apply she would have to have met the 1,250 hours requirement in the 12 months immediately preceding the leave. So the question now comes down to whether or not she has worked 1,250 hours in the six months since she was rehired.

No, She has not worked 1250 hours since she was rehired. So, I don't guess there is anything under the FMLA that protects her. Is there anything else we can do. Her supervisor told her while she was in the hospital not to worry that her job would be there when she was cleared to come back. Then my wife called to tell her what was going on after her doctors appt. and the supervisor told her she already sent her final pay and insurance paperwork in the mail. Do you not have to sign some paper when you are fired. Also, the pay and insurance papers would have been sent just a few days before the six month mark. In Arizona you must work for 6 months or longer to draw unemployment insurance, right? If so I don't think my wife will be eligible. Thanks for any input.

If she had not worked 1,250 hours since her rehire, FMLA does not protect her. I'll have to look it up when I get back to my office to be certain, but I don't believe there is any state mandated leave time in AZ that would protect her either. I suppose you could try consulting with an attorney to see if the supervisor's statement holds any legal water, but frankly I wouldn't be holding my breath over it.

Nothing in the law requires that you sign anything before you can be terminated or laid off. That's strictly a matter of company policy.

I honestly don't know the eligibility laws for Arizona but I do know it costs nothing to apply and there is no penalty for being wrong. In many states, previous employers count towards the eligibility for UI, not just the "current" employer.

I was more going on the "deeming provisions." I kinda figured his wife hadn't worked enough hours to qualify.

For you, our poster (in English), the deeming provisions of FMLA provides that an otherwise ineligible employee whose employer fails to advise him/her of eligibility status prior to the commencement of leave will be "deemed" eligible and the employer may not then deny the leave. UNFORTUNATELY FOR YOUR WIFE, there are some circuit courts that have struck down the deeming provisions. There is another, mostly unrelated, FMLA case that could possibly open a door for your wife: Ragsdale v. Wolverine Worldwide. Ragsdale leaves open the possiblity that failure to give proper notification can be construed as interfering with an employees rights.

The DOL typically will not intervene when an FMLA violation simply because of the deeming provisions, unless the violation is quite aggregious. For example, the employee has worked 1249 hours, and takes leave, and the employer fails to notify until after the leave has commenced.

The above information is why I asked for a timeline of what her employer knew and when, and what their response was to her.

Actually, Ragsdale takes the opposite position. Tracy Ragsdale lost that case - the US Supreme Court ruled that her employer's failure to notify her that the time was being applied to FMLA did NOT entitle her to additional time.

Actually, Ragsdale takes the opposite position. Tracy Ragsdale lost that case - the US Supreme Court ruled that her employer's failure to notify her that the time was being applied to FMLA did NOT entitle her to additional time.

Cathy,

You are absolutely correct that Tracy Ragsdale lost that case. For our poster, basically Ms. Ragsdale had taken all of her leave, but asserted that she was entitled to an additional 12 weeks because her employer failed to notify her that her previous leave was FMLA designated. There isn't a single sentence of FMLA that guarantees an employee additional leave time on the basis of an employer's failure to designate leave as FMLA protected. The regualtions do however assert that if an employer fails to designate leave as FMLA that their leave rights have been impaired. This is because there are statutory protections that accompany FMLA leave e.g. not assigning points under a no-fault attendance policy or job restoration. The Supreme Court decision in Ragsdale v. Wolverine invalidated this penalty, KINDA SORTA.

The Supreme Court ruling on Ragsdale opens the door for a suit on the basis of equitable estoppel. Basically, an employer's failure to properly advise the employee of their eligibility for leave, may be deemed as interfering with his/her rights, IF the employee could have taken other action had he/she been properly notified. The reason why Ragsdale lost this case was she could not prove that she would have taken any different course of action IF she would have been notified that her leave was otherwise designated as FMLA.

Even in the Supreme Court's decision on Ragsdale, the majority opinion cites circumstances in which a failure to notify could result in a much different decision. Such is why I have asked our poster for addtional information, and a timeline of what specifically did she tell her employer, and when, and what was their exact response to her.

First, I'll give you some situations in which, IN MY PROFESSIONAL OPINION, she may have a case:
1. She told her employer she needed medical leave, and they in some shape, form, or fashion, granted the leave.
2. She told her employer she needed medical leave, what it was for, and how long she would need to be off, and her employer did not notify her until AFTER the leave commenced that this amount of time was unacceptable.
3. She told her employer she needed medical leave, got some paperwork, had it filled out and turned it in, and was never told that she was not eligible based upon hours worked.

Second, could your wife have postponed the surgery? The reason that I ask is that an employee needs to only work about 7 1/2 months @ about 40 hours a week to make 1250 hours. IF she worked full time (big assumption on my part), she would have been very close to the hours requirement. She had already met the 1 yr requirement because of her previous stint with them, so I turn to what exchanges there were about the situation between her and her employer. In my humble opinion, her case would be significantly strengthened if she can show that her condition was serious, but she could have waited a few additional weeks until she met the hours worked requirment. Examples of such conditions would be fibroid cysts necessitating a hysterectomy, chronic strep throat necessitating tonsillectomy etc. These are both FMLA qualifying conditions, but are surgeries that are COMMONLY postponed. Just ask me, I know. I have been postponing a tonsillectomy for nearly 12 years now cause I am just plain chicken ;)

BUT POSTER, JUST REMEMBER, CATHY (cbg) HAS JUST ABOUT AS MUCH EXPERIENCE AS I AM OLD!!! So take hers into serious consideration.

Cutting to the chase here, the poster's wife was not eligible for FMLA leave so if the employer elects not to extend leave and/or replace her while she's out, they're free to do so.

Second, could your wife have postponed the surgery? His wife had a staph infection - that's not something one can postpone treating. She'd likely have been dead long before she'd worked the additional hours to qualify for FMLA.

I do not believe there are any grounds for a FMLA violation. I very much doubt that their failure to say, "This leave does not qualify for FMLA" is going to automatically cover her for FMLA when she does not meet the qualifications for FMLA, even using the "deeming provisions". The US Supreme Court, In Ragsdale, was very clear that the US DOL was misinterpreting certain sections of the FMLA statute. I re-read the opinion letter on "deeming provisions" and on Ragsdale last night and my opinion still stands as stated above.

In MY professional opinion, the only possible claim she might have, and it's a very weak one, is the statement of the supervisor a week before that her job was still open for her. In that case, it is a contract breach, not a FMLA violation, and her recourse would be through an attorney. I think the chances of prevailing are slim. With the right attorney, it might be possible.