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  • Fired for poor performance while on FMLA West Virginia Wisconsin

    Here is the deal, I was let go today by my employer. The reason I was given was because I have not completed the work that my boss gave me. My manager also mentioned that people I work with told him that I'm difficult to work with, that 'you think you're one step up from them, you're short with them', he also told me that a member of management came up to my office last week and that I 'rolled my eyes at him'. Finally, he said he was told by two employees that I was sleeping at my desk.

    My company did not have anything posted about FMLA so I did not know I was eligible, I was given a letter on 1/22/09 stating that my attendence record is not acceptable and any further unexcused abscesnes would result in termination. This is when I looked into FMLA, I applied for FMLA benefits on January 23rd, 2009 related to neck/back/joint pain this was an intermittent request. The company also has NO formal attendance policy, or an employee handbook. I should say I was never given either of these if they do have them, I also spoke with other employees who have been with the company longer than I and they were not aware of any policies in place.

    I never recieved a written response from my HR department that my FMLA was approved, I sent several follow-up emails asking if my FMLA was approved. I never got a written response back, the HR person CALLED ME and informed me I was approved.

    Over the past 6 months, I have felt super tired, all of my joints hurt and I can't seem to concentrate on anything. I informed my employer of this and I also did miss several days from work because of it. Each time I missed I made it clear why I was gone. When I was at work, it was a struggle to stay awake at my desk, and to stay on task. My position was a programmer analyst, obviously with every finger joint in EXTREME pain typing wasn't much fun.
    I've been told that I have rheumatoid arthritis which will cause severe fatigue, joint stiff and pain and lack of concentration related to the pain.

    At my last review in Feb of 08, I was told my work was excellent, that I dealt with all employees in a courteous and professional manner and that my attendance was excellent.
    I have never recieved any written or oral disciplinary action/warnings on my work performance. My ex-boss claims that him emailing me BACK on my questions was telling me that I wasn't doing a good job. I was never given a probationary period to attempt to correct the issues.

    Finally, the last statement my ex-boss said to me was that 'it was like you just were all here, that your mind was somewhere else. ' He also said that he feels the company has been more than reasonable to me in allowing me to take time off ( I was gone for a week after emergency gallbladder removal surgery, a 1/2 day for totalling my car and 2 days for my Grandmother's funeral.)

    My question is, do I have a right to file a complaint against my former employer for firing me while on FMLA? It's my opinion that my condition (neck pain from accident on 11/07/07 & rheumatoid arthritis) affected my work performance, both in attendance and quality of work.

  • #2
    Let's first establish whether the FMLA applies.

    1) How long have you worked for this company?

    2) How many employees do they have at the site at which you work or within a 75-mile radius?

    3) Are you a full-time employee?

    For the sake of discussion at this point, let's assume the FMLA applies. Your employer doesn't have to guess at your need for intermittent FMLA. If it's apparent an employee's absences fall under the FMLA, then they need to extend FMLA leave. But someone who is periodically absent due to vague symptoms of fatigue, stiffness, pain, etc. is not a situation where the employer could or would identify it as an FMLA qualifying situation.

    Even if you qualify for FMLA leave, that doesn't mean your employer can't hold you accountable for your performance and behavior at work. Failing to complete assignments, being difficult to work with, and rolling your eyes at a member of management are valid reasons to terminate your employment.

    At this point, assuming the FMLA/WFMLA do apply, the only violation I see is their failure to post the required notices and advise employees of their FMLA rights.

    Comment


    • #3
      I appreciate the reply however I do have more questions that I hope someone can answer.

      I worked for the company for 2 years starting 07/07, it employees approx. 300 employees, most at the location I worked.

      For the first year of my employment I missed very few days, the ones I did miss were scheduled in advance and I used my vacation/personal time for them. In September of 08 I was sent to help out another location, while I was there I got very sick. When I got back, I told my boss I just didn't feel right. I ended up taking two 1/2 days then I ended up in the hospital for a gallbladder surgery. I was off of work for 1 week and 1 week on 1/2 days, I was not offered FMLA, didn't even know I was eligible. Anyway after I came back from this, that's when I started having swelling, stiffness and pain in all of my joints. IN addition I have a herniated disk in my neck and facet joint injury that causes me a lot of pain from a motor vehicle accident. So I told my boss what was going on, that there were days my hands were so swollen I couldn't type. Finally I ended up calling in one day because i couldn't get dressed, I scheduled an appointment with my Dr. When I called in that day i told my boss and HR exactly why I was gone. Shortly after is when I got the letter on attendance, that's when I heard about FMLA and started to check into it. When I asked my HR about it, she had no idea what I was talking about. I printed the papers off of the gov. website, sent them into my Dr. he filled out and returned the forms. I turned them in for my NECK, at my next dr. visit I was diagnosised with rheumatoid arthritis. I informed my employeer of this and asked for fmla for this condition as well. I never got a written approval and I was never told there was ever any issue with my work.
      I am saying that if my work suffered as alleged by my boss, it was definitely related to the arthritis and the medications I'm on for it. Also, being in constant pain definitely affects my concentration etc.

      Maybe I'm just a scorned employee, but it seems to me that they fired me because of my disease. Also as a side note, after the attendance letter my department recieved on 1/22 I started to keep track of the time missed by my fellow employee. He has missed at least 1 day per week for the past six weeks yet he maintains his position.

      Comment


      • #4
        It appears your employer had enough information to be aware of your need for FMLA for many of your absences.

        To answer your initial questions, you employer can fire you while on FMLA leave but not BECAUSE you're on FMLA leave or BECAUSE you have had absences that should have been considered FMLA leave. I suggest you contact the federal Department of Labor and file a complaint.

        Comment


        • #5
          BTW, you may also file a complaint with Wisconsin's Department of Worforce Development. Wisconsin has it's on FMLA regulation which it appears your employer has violated, in addition to the federal FMLA.

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