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  • Fired for asking for FMLA Utah

    I was recently terminated for asking for FMLA leave.

    I asked my direct manager if I could have an accommodation to care for my son who has a serious health condition. I was asking to work 8 1/2 hours because my direct manager said our organization has a policy that we must take a mandatory 45 minute lunch (most people don't but my manager is letter of the law).

    My manager not only said that I could not leave 15 minutes early but he also denied all attempts I made for an accommodation and then threated to fire me that day for asking for an exception to the 45 minute mandatory lunch policy and for asking to see it in writing. He said I was defiant. I told him specifically what I needed leave for, how long the leave would occur, and that I only needed 15 minutes a day. I did not mention FMLA and according to the statue it states this is not necessary. Still he would not budge and so I just worked the 9 hour days because I couldn't catch my bus. This resulted in 12 hour days with the bus ride. I never asked again because he threatened to fire me.

    My manager did not tell me I had rights under FMLA. I reviewed the HR handbook which stated that supervisors should work with employees and to schedule time to serve the employees needs.

    I was in this department only 9 days when this happened. Four months later he came in, out of the blue, and stated that I was being terminated because I did not "fit". I appealed. The letter from the managing director stated I was terminated for three reasons I had never heard before. I had never been spoken to about these issues and hr said there was no documentation in my employee file. The reasons were made up and defamatory. One of those reasons given in was that I was defiant. The only time that this could have referring to was when I asked for an FMLA accommodation.

    I was with the organization 8 years with superior performance ratings until I transferred into this department.

    After termination I found out from my medical doctor that my case qualified and that I had a right to time off.

    Do you think I have a good case to sue under FMLA and defamation?

  • #2
    You're confusing FMLA with the ADA. FMLA does not provide accomodations. It is medical leave. Leaving 15 minutes early has nothing to do with FMLA.
    And nothing you have posted comes even remotely close to defamation.

    Your employer is not required to accomodate your son's health condition.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Re: FLMA

      Ok, sorry, FAMILY LEAVE.

      The Family and Medical Leave Act states:

      Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: "to care for an immediate family member (spouse, child, or parent) with a serious health condition"

      Also under 29 CFR 825.116
      (a) The medical certification provision that an employee is ``needed
      to care for'' a family member encompasses both physical and
      psychological care. It includes situations where, for example, because
      of a serious health condition, the family member is unable to care for
      his or her own basic medical, hygienic, or nutritional needs or safety,
      or is unable to transport himself or herself to the doctor, etc. The
      term also includes providing psychological comfort and reassurance which
      would be beneficial to a child, spouse or parent with a serious health
      condition who is receiving inpatient or home care.
      :
      :
      (c) An employee's intermittent leave or a reduced leave schedule
      necessary to care for a family member includes not only a situation
      where the family member's condition itself is intermittent, but also
      where the employee is only needed intermittently--such as where other
      care is normally available, or care responsibilities are shared with
      another member of the family or a third party.

      So, do I have a case under FMLA? I certainly believe that I should have been granted leave in order to help care for my son.

      Also, what is it called when an employer lies about the reason for my being fired? The items they listed were made up, they never spoke to me about any performance issues, and they have NO documentation whatsoever. I have documentation showing that their statements are false.
      Last edited by mrr37; 10-12-2006, 04:37 PM. Reason: Clarification

      Comment


      • #4
        How many employees does your employer have within 75 miles of your location? Also, what is the nature of your son's condition?

        It was your reference to accomodation that threw me. That's an entirely different law.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          Based on what you have posted, it is possible that the fifteen minutes per day that you requested could constitute intermittent leave under the FMLA. And from what you say, your son's doctor is supporting that you needed the time as intermittent FMLA leave. If you want to pursue it you should contact the United States Department of Labor.

          But, if the termination occurred four months after you requested the leave, I think you will have trouble convincing anyone that the request caused your termination.

          Communicating false reasons for termination to you is not defamatory. Communicating them to others in the organization is probably not defamatory because it is probably a privileged communication. Defamation lawsuits are difficult to pursue and even more difficult to win. You can end up doing your reputation more damage by filing one than just leaving it go.

          Comment


          • #6
            (Although I think a case can be made that if she only needed 15 minutes a day to care for him, how "serious" a health condition can it be? FMLA is not for child care issues.)
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

            Comment


            • #7
              Does it matter that she did not have anything to show that she WAS qualified for FMLA when she was asking for intermitent leave? It just seems to me that if the situation was that serious, then she would have known 4 months ago when she talked to her manager. How would the manager have any way of knowing that she DID qualify for FMLA if SHE did not even know?
              HOOK 'EM HORNS!!!
              How do you catch a very rare rabbit?
              (unique up on him)
              How do catch an ordinary rabbit?
              (same way)

              Comment


              • #8
                I'm also wondering about the need to leave just 15 minutes early. While yes, I have had cases where that was true, such as when an employee's child had a PT appointment that was at the same time they got off work and they needed to leave 15 minutes early to arrive in time, it is rare. I'm not sure what the 3 hours on the bus has to do with any of it either. If it was just a matter of taking a more convenient bus, it wouldn't fall under FMLA.

                It might help to explain why the leave was needed.
                I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                Comment


                • #9
                  I believe that she does not need to be qualified for FMLA leave, to be protected from retaliation for asking for it (if the employer is covered). If anyone knows for sure, please post.

                  But the 4-month gap is a big obstacle to proving retaliation.
                  Last edited by patriot1123; 10-13-2006, 09:52 AM.

                  Comment


                  • #10
                    Except the employee didn't ask for FMLA. Just asking for leave that may qualify, but not ever designating it as such isn't enough. In any case, I agree that it is a huge stretch to assume that they would wait 4 months to retaliate for asking about a leave that was denied then never brought up again.

                    The employee isn't entitled to a detailed explanation nor a copy of the policy when a supervisor says "no" to something. Yes, a good supervisor would provide it, but the law doesn't require a supervisor be good at their job. He could have legally fired the employee for being defiant, even if it was over requesting leave. In a more extreme example, if I go in to request FMLA and in the process call my supervisor a derogatory name, I can be fired for that. It doesn't matter that I was engaging in a protected act at the time. Requesting the leave is protected, not the matter I do so or anything related to company policy that happens in the same conversation.
                    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                    Comment


                    • #11
                      Thank you for all of the replies. Let me give some more information that may be helpful.

                      1. The reason for for needed a 15 minute leave was to catch the early bus. I needed to be home shortly after my son arrived so that I could help my spouse care for my son. My son is bipolar, has ADHD, and Oppositional Defiance Disorder (ODD). My son is incapable of doing homework without direct supervision. Also, if I don't keep him on-task then he takes the full energy of my spouse and she is unable to help our other two children with their homework and prepare dinner. Also, my son has our other two children in tears within minutes if one of us isn't keeping him occupied. My doctor has worked with him for 10 years and certified that I was needed at home. I cannot take an earlier bus because I also needed to help in the morning. There are only two buses I could take which resulted in my request to leave 15 minutes early. If I took the later bus it would result in me getting home too late to help, especially if there were traffic delays.

                      All of my managers, up to the day I requested leave, were willing to work with me and were flexible. I never was required to take a mandatory 45 minute lunch before I transferred to this department. Additionally, I know of at least a dozen people who did not abide the 45 minute lunch rule and had no problems.

                      2. The department admits the decision to terminate me was the day I asked for leave to help at home. They didn't explain why it took so long to finally pull the trigger.

                      3. There are more than 5000 employees in the organization.

                      4. I found out I didnt have to expressly say "FMLA": “An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example. The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. In the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious health condition and may request medical certification to support the need for such leave (see Sec. 825.305).”

                      5. The employee handbook states: If an employee needs intermittent leave, he/she and the supervisor should work together to schedule the leave so that it serves the employee’s need while causing minimal disruption to the workplace. Management may transfer the employee to another position in order to accommodate the employee’s need to take intermittent leave.

                      6. I deny being defiant. I never raised my voice, said anything derogatory, or replied in a defiant way. My manager said I was defiant for asking and for asking to see the policies in writing.

                      You have all been very helpful, thank you.
                      Last edited by mrr37; 10-13-2006, 10:26 AM. Reason: Clarification

                      Comment


                      • #12
                        The biggest obstacle I see is that you weren't leaving early for medical reasons but to accommodate your transportation schedule. The lunch schedule was really immaterial as you could still be required to stay until the same time at night, whether you took an hour for lunch, or skipped it entirely. Taking a shorter lunch does not entitle you to leave early.

                        FMLA might entitle you to leave early but not to skip or take an abreviated lunch. The two are mutually exclusive.

                        FMLA is not available for transportation reasons. How you get to and from the office and home is up to you. Your employer isn't required to let you leave early to accommodate the bus schedule. Similarly, FMLA is not available so you can be home to keep the kids from fighting, assist with homework, allow your spouse to prepare dinner or keep your family to the schedule you would like to. Those are family obligations and decisions which I can understand you want to be part of, but that doesn't mean FMLA requires leave for these reasons. Dinner doesn't have to be at a certain time. Homework doesn't have to be done before dinner.

                        I'm not saying you didn't have a good reason to want to adjust your hours or that your employer wasn't being a little bit anal retentive in not approving your request. What I'm saying is I don't see how leaving 15 minutes early each day to take the bus home to assist with typical family chores qualifies as FMLA.
                        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

                        Comment


                        • #13
                          "I was in this department only 9 days when this happened. "


                          This may have already been covered, but how long did you work for this employer?
                          -----------------------------------------
                          98% of the population is asleep. The other 2% are staring around in complete amazement, abject terror, or both.

                          Comment


                          • #14
                            I was with this organization 8 years with highly positive performance evaluations every year. There is nothing negative in my employee file.

                            Does the concept of "implied covenant of good faith and fair dealing" apply in this case? In Utah?
                            Last edited by mrr37; 10-14-2006, 11:42 AM. Reason: clarification

                            Comment


                            • #15
                              I see no reason why it would apply in this case. No one has denied you something that is yours by right, promised you something and then denied it, or anything of that kind. FMLA would not apply in this situation and they have no legal or moral obligation to allow you to leave early without it.

                              Sorry, but I really don't see that you have any kind of legal recourse based on your description of the facts.
                              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                              Comment

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