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An Employee Rights Law Firm
The Employee's Voice And Advocate

Inverness, FL Employment Attorneys
Serving Central Florida Employees

Having fought for employee rights for more than twenty years, our Citrus County, Florida employment attorneys know that employers frequently terminate employees who are temporarily unable to work for medical reasons. Through their decades of experience representing Florida employees, our Inverness, Florida employment lawyers also know that many employees have no job security when they are incapable of working because of medical problems. Based on Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida employment attorneys are dedicated to fighting for employees’ job security when they need time off from work for their own serious illnesses or to care for immediate family members.

Family Medical Leave Act (FMLA)

The Family Medical Leave Act (FMLA) was enacted in 1993, as observed by the U.S. Fifth Circuit Court of Appeals in Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973 (5th Cir. 1998), “because Congress found inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.” In passing the FMLA, the U.S. Ninth Circuit Court of Appeals explained in Bachelder v. American West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001), “Congress concluded that it is unfair for an employee to be terminated when he or she is struck with a serious illness and is not capable of working.”

In order to address this problem, the FMLA creates a series of entitlements or substantive rights that benefit covered employees. Chief among these entitlements is the right of employees to take up to twelve weeks of unpaid leave each year for their own serious health condition or to care for immediate family members with a serious health condition, and the right of employees to reinstatement after they take FMLA leave. Thus, as observed by the U.S. Eighth Circuit Court of Appeals in Stallings v. Hussman Corp., 447 F.3d 1041 (8th Cir. 2006), “the FMLA provides job security to employees who must miss work because of their own illnesses, to care for family members, or to care for new born babies.”

Employee’s Right To FMLA Leave

An employee eligible for leave under the FMLA is entitled to take a total of twelve workweeks of leave, without pay, during any twelve-month period for any one of the following reasons:

  • The birth of a son or daughter of the employee and to care for the newborn child;
  • The placement of a son or daughter with the employee for adoption or foster care;
  • In order to care for the spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition; and
  • Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.

Each of these reasons constitutes a qualifying reason for FMLA leave. Under any of these circumstances, an employee eligible for leave under the FMLA has a FMLA-qualifying reason for leave and is entitled to take FMLA-protected leave.

On returning to work from FMLA leave, an employee is entitled to return to the same position or to an equivalent position with equivalent pay, benefits, and working conditions. In guaranteeing employees the right to reinstatement upon expiration of FMLA leave, the FMLA prohibits employers from terminating employees for taking FMLA leave. The FMLA also provides for “intermittent” leave, which allows an employee to take leave intermittently when medically necessary, such as to attend appointments with a health care provider for necessary treatment of a serious health condition.

Employee’s Eligibility For FMLA Leave

In order for an employee to be eligible for leave under the FMLA, the employee must have been employed for at least twelve months by the employer with whom leave is requested and must have accumulated at least 1,250 hours of service with such employer during the previous twelve-month period. In Walker v. Elmore County Bd. Of Educ., 379 F.3d 1249 (11th Cir. 2004), the U.S. Eleventh Circuit Court of Appeals ruled that the determination of whether an employee has been employed for at least twelve months for purposes of FMLA eligibility “must be made as of the date leave commences.” In other words, an employee’s eligibility for FMLA leave is determined based on the date when an employee’s leave is to commence, not the date the employee requests leave. In order for an employee to be eligible for leave under the FMLA, the employee must also show that he or she was employed at a worksite where at least 50 employees of his or her employer worked, or that his or her employer employed 50 employees within 75 miles of that worksite.

FMLA Interference & Retaliation Claims

The FMLA prohibits employers from denying or interfering with an employee’s substantive FMLA rights, and further prohibits employers from discharging or discriminating against an employee for exercising or attempting to exercise FMLA rights. To preserve and enforce FMLA rights, the FMLA creates two types of claims: interference claims and retaliation claims. In a FMLA interference claim, an employee contends that an employer denied or otherwise interfered with his or her substantive rights under the FMLA. In most FMLA interference cases, employees claim that the employer denied them leave to which they were entitled to under the FMLA. In a FMLA retaliation claim, employees contend that an employer discriminated against them for having exercised or attempting to exercise their FMLA rights. In most retaliation cases, employees claim that the employer fired them in retaliation for seeking or taking FMLA leave.

Interference With FMLA Rights

The FMLA, as explained by the U.S. District Court for the District of Eastern Kentucky in Collins v. Dan Cummins Chevrolet-Buick, Inc., 2015 WL 4603108 (E.D. Ky. July 29, 2015), “is designed to protect employees.” Thus, the FMLA prohibits employers from interfering with, restraining, or denying the exercise of or the attempt to exercise any rights provided by the FMLA. In an FMLA interference claim, as pointed out by the U.S. Eleventh Circuit Court of Appeals in Evans v. Books-A-Million, 762 F.3d 1288 (11th Cir. 2014), an employee need only show that “she was denied a benefit to which she was entitled under the FMLA, and that she has been prejudiced by the violation in some way.”

As observed by the U.S. District Court for the Southern District of Florida in Shelton v. Price Waterhouse Coopers, LLP, 2014 WL 2581348 (S.D. Fla. May 2, 2014), an employer’s interference with an employee’s FMLA rights includes “refusing to authorize FMLA leave, discouraging the use of FMLA leave, manipulation to avoid responsibilities under the FMLA, and changing the essential functions of the job in order to preclude the taking of leave.” Moreover, as determined by the U.S. District Court for the District of Oregon in Stewart v. Sears, Roebuck & Co., 2005 WL 545359 (D. Or. May 7, 2005), “employers cannot use the taking of FMLA leave as a negative factor in employment decisions,” such as promotion, discipline, or discharge. “When an employer attaches negative consequences to the exercise of [FMLA] protected rights,” as explained by the U.S. Eighth Circuit Court of Appeals in Stalling v. Hussman Corp., 447 F.3d 1041 (8th Cir. 2006), “it has chilled the employee’s willingness to exercise those rights because he or she does not want to be fired or disciplined for doing so.”

In order to present a prima facie case for FMLA interference, as determined by the U.S. Sixth Circuit Court of Appeals in Srounder v. Dana Light Axle Mfg., 725 F.3d 608 (6th Cir. 2013), an employee has the burden to prove that: (1) she was “eligible” for leave under the FMLA; (2) the employer was an “employer” under the FMLA; (3) she was “entitled to leave under the FMLA”; (4) she “gave the employer notice of her intention to take leave”; and (5) the employer “denied her FMLA benefits to which she was entitled.”

To prevail on a FMLA interference claim, as explained by the U.S. Eleventh Circuit Court of Appeals in Krutzig v. Pulte Home Corp., 602 F.3d 1231 (11th Cir. 2010), an employee is not required to prove that the “employer intended to deny the benefit, because the employer’s motives are irrelevant.” As observed by the U.S. District Court for the Middle District of Pennsylvania in Reid-Falcone v. Luzerne Cty. Community College, 2005 WL 1527792 (M.D. Pa. June 28, 2005), when an employee claims interference with FMLA rights, “the employee need not show that the employer treated other employees less favorably, and an employer may not defend its interference with the FMLA’s substantive rights on the ground that it treats all employees equally poorly without discriminating.”

Indeed, as pointed out by the U.S. Third Circuit Court of Appeals in Callison v. City of Philadelphia, 430 F.3d 117 (3d Cir. 2005), a FMLA interference case “is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.” “Because the issue is the right to entitlement,” as explained by the U.S. First Circuit Court of Appeals in Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998), “the employee is due the benefit if the statutory requirements are satisfied, regardless of the intent of the employer.”

Serious Health Condition Under FMLA

In enacting the FMLA, as observed by the U.S. Eighth Circuit Court of Appeals in Woods v. DaimlerChrysler Corp., 409 F.3d 984 (8th Cir. 2005), “Congress did not intend to cover leave for short-term conditions for which treatment and recovery are very brief.” Instead, only absences from work attributable to a serious health condition are protected by the FMLA. Under the FMLA, as the Woods court pointed out, “conditions which would ordinarily not be covered include the common cold, the flu, ear aches, upset stomach, minor ulcers, and headaches other than migraine.” However, as the Eighth Circuit explained in Rankin v. Seagate, 246 F.3d 1145 (8th Cir. 2001), although “conditions like the common cold or flu will not routinely satisfy the requirement of a serious health condition” under the FMLA, “absences, resulting from such illnesses are protected under the FMLA when” the FMLA test for a serious health condition is satisfied.

The FMLA entitles an employee to take twelve weeks off from work, without pay, because of the employee’s own serious health condition that makes the employee unable to perform the functions of the employee’s job, or to care for a spouse, son, daughter, or parent who has a serious health condition. The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care in a hospital, hospice, or residential medical care facility; or (2) continuing treatment by a health care provider.

Under the FMLA regulations, a serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

  • A period of incapacity of more than three consecutive, full calendar days, and involves either (a) treatment by a health care provider at least twice within thirty days of the first day of incapacity, unless extenuating circumstances exist, or (b) treatment by a health care provider at least once that results in a regimen of continuing treatment under the supervision of a health care provider. The requirement of treatment by a health care provider means an in-person visit to a health care provider. Moreover, the first (or only) in-person visit must take place within seven days of the first day of incapacity;
  • Any period of incapacity due to pregnancy, or for prenatal care;
  • Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which (a) requires at least two visits a year for treatment by a health care provider, (b) continues over an extended period of time, and (c) may cause episodic rather than a continuing period of incapacity; or
  • A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective.

Under the FMLA regulations, the term “incapacity” means an inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment for the serious health condition, and recovery from the serious health condition. The FMLA regulations also provide that an employee is unable to perform the functions of the employee’s job when a health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s job. The FMLA regulations further provide that an employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

Notice Of Need For FMLA Leave

In Brohm v. JH Properties, Inc., 149 F.3d 517 (6th Cir. 1998), the U.S. Sixth Circuit Court of Appeals pointed out that “nothing in the [FMLA] . . . places a duty on an employer to affirmatively grant leave without a request or notice by the employee.” Thus, the FMLA does not grant employees the right to take leave unconditionally. Rather, in order to invoke the protection of the FMLA, employees must give their employer notice of the need for FMLA leave. As explained by the U.S. Eleventh Circuit Court of Appeals in White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188 (11th Cir. 2015), “an employee’s notice of her need for FMLA leave must satisfy two criteria—timing and content—both of which differ depending on whether the need for leave is foreseeable or unforeseeable.” Thus, a FMLA interference claim cannot succeed unless the employee shows that he or she gave the employer timely and adequate notice of a potentially FMLA-qualifying reason for leave.

Timely Notice Of Need For FMLA Leave

Under the FMLA regulations, if an employee’s need for leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or family member, the employee must give the employer at least thirty days advance notice of the need for leave. However, the FMLA regulations also provide that if thirty days is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, then notice must be given “as soon as practicable. The FMLA regulations define the phrase “as soon as practicable” to mean “as soon as both possible and practicable, taking into account all of the facts and circumstances of the individual case.”

Under the FMLA regulations, if an employee’s need for leave is unforeseeable, the thirty-day requirement does not apply. Instead, an employee whose need for leave is unforeseeable must provide notice to the employer “as soon as practicable” under the facts and circumstances of the case. When the need for leave is unforeseeable, notice of an employee’s need for leave may be provided by the employee’s spokesperson, such as a spouse, adult family member, or other responsible party, if the employee is unable to do so personally.

Adequate Notice Of Need For FMLA Leave

In order to provide adequate notice of a FMLA-qualifying reason for leave, as explained by the U.S. Ninth Circuit Court of Appeals in Bachelder v. American West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001), “employees need only notify their employers that they will be absent under circumstances which might indicate that the FMLA might apply.” “In requesting leave,” as observed by the U.S. Tenth Circuit Court of Appeals in Crowell v. Denver Health & Hosp. Authority, 572 Fed.Appx. 650 (10th Cir. 2014), “employees need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.” In other words, as noted by the U.S. District Court for the Western District of New York Cole v. Uni-Marts, Inc., 88 F.Supp.2d 67 (W.D. N.Y. 2000), “it is notice of the [FMLA] qualifying reason and not notice of the FMLA basis for that leave, that must be communicated.”

“[T]he critical question” courts consider, as observed by the U.S. Eleventh Circuit Court of Appeals in Gay v. Gilman Paper Co., 125 F.3d 1432 (11th Cir. 1997), is whether “the employee adequately conveyed to the employer sufficient information to put the employer on notice that her absence was potentially FMLA-qualifying.” Thus, as determined by the Eleventh Circuit in Crawford v. City of Tampa, 464 Fed.Appx. 856 (11th Cir. 2012), “to give sufficient notice, the employee must inform the employer of a potentially FMLA-qualifying reason for the employee’s absence.” In applying this standard, as pointed out by the U.S. Seventh Circuit Court of Appeals in Phillips v. Quebecor World RAI, Inc., 450 F.3d 308 (7th Cir. 2006), “an employee’s reference to being ‘sick’ . . . does not suggest to the employer that the medical condition might be serious or that the FMLA otherwise could be applicable.”

The FMLA regulations provide further guidance regarding what constitutes adequate notice of the need for FMLA leave. When an employee’s need for leave is foreseeable, the FMLA regulations state that the employee must 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. When an employee’s need for leave is unforeseeable, the FMLA regulations provide that the employee must provide sufficient information for an employer to reasonably determine whether the FMLA might apply to the leave request.

Must Comply With Employer Leave Policy

When an employee’s need for leave is foreseeable, the FMLA regulations provide that an employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. When an employee does not comply with the employer’s usual and customary notice and procedural requirements, and no unusual circumstances justify the employee’s failure to comply, the FMLA regulations allow the employer to delay or deny FMLA leave. Under the FMLA regulations, FMLA leave may not be delayed or denied when the employer’s policy requires the employee to give less than thirty days advance notice of the need for leave and the employee provides the employee with at least thirty days advance notice of the need for leave.

When an employee’s need for leave is unforeseeable, the FMLA regulations also state that the employee must also comply with the employer’s usual and customary notice requirements for requesting leave, absent usual circumstances. If an employee fails to comply with the employer’s usual and customary notice and procedural requirement for requesting leave, and no usual circumstances justify the failure to do so, the FMLA regulations allow the employer to delay or deny FMLA leave.

The FMLA’s language requiring an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, as observed by the U.S. Sixth Circuit Court of Appeals in Srounder v. Dana Light Axle Mfg., LLC, 725 F.3d 608 (6th Cir. 2013), “explicitly permits employers to condition FMLA-protected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” In other words, the Srounder court explained, “an employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements,” and may delay or deny an employee FMLA leave when the employee fails to comply with its requirements even though the employee has an FMLA-qualifying reason for leave.

Employer’s FMLA Notice Requirements

As the U.S. Eleventh Circuit Court of Appeals explained in Cruz v. Publix Super Markets, Inc., 428 F.3d 1379 (11th Cir. 2005), “once an employee gives sufficient notice to make the employer aware that the employee needs FMLA-qualifying leave, the employer then must ascertain whether the employee’s absence actually qualifies for FMLA protection.” Thus, as pointed out by the U.S. Ninth Circuit Court of Appeals in Bachelder v. American West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001), “it is the employer’s responsibility, not the employee’s, to determine whether a leave request is likely to be covered by the [FMLA].” Indeed, as observed by the U.S. District Court for the Southern District of New York in Slaughter v. American Bldg. Maintenance Co., 64 F.Supp.2d 319 (S.D. N.Y. 1999), “the FMLA places a significant burden on the employer to both make itself aware of the FMLA’s dictates and to inform its employees of their rights under the FMLA.”

When an employer acquires knowledge that an employee’s leave may be for a FMLA-qualifying reason, as determined by the Eleventh Circuit in Rajmi v. Hospital Housekeeping Systems, LLC, Case No. 1:18-cv-00734 (11th Cir. April 6, 2021), “the employer must also provide notice to the employee of her eligibility for and rights under the FMLA within a certain time frame.” The FMLA regulations identify two types of notice: eligibility notice and rights and responsibilities notice. An employer’s failure to comply with the FMLA notice requirements, the Rajmi court explained, “may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights.”

Eligibility Notice To Employee

Under the FMLA regulations, when an employee requests FMLA leave or when an employer acquires knowledge that an employee’s leave may be for a FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. The eligibility notice must state whether the employee is eligible for FMLA leave. If the employee is not eligible for FMLA leave, the eligibility notice must state at least one reason why the employee is not eligible, including as applicable the number of months the employee has been employed by the employer, the hours of service with the employer during the twelve-month period, and whether the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. The FMLA regulations permit eligibility notice to be oral or in writing.

An employer’s failure to comply with the FMLA’s eligibility notice requirement generally constitutes an interference with an employee’s FMLA rights so long as the employee can establish that he or she was prejudiced by the violation in some way. When an employer fails to comply with the FMLA’s eligibility notice requirement despite having knowledge that an employee needs and is potentially entitled to FMLA leave, many employees never timely learn of their FMLA leave and reinstatement rights. Consequently, when an employer fails to comply with the FMLA’s eligibility notice requirement, many employees unknowingly forfeit the protection of the FMLA. If the employee’s forfeiture of FMLA protection harms the employee, such as when the employee is discharged for being absent from work or being unable to perform the functions of the employee’s job, the employer has unlawfully interfered with the employee’s FMLA rights.

Rights & Responsibilities Notice From Employer

Under the FMLA regulations, rights and responsibilities notice requires employers to provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The FMLA regulations mandate that rights and responsibilities notice must include, as appropriate:

  • The fact that the leave may be designated and counted against the employee’s annual FMLA leave entitlement.
  • Any requirement for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so.
  • The employee’s right to substitute paid leave and whether the employer will require the substitution of paid leave, and the conditions related to any substitution.
  • Any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis.
  • Any requirement for the employee to present a fitness-for-duty certificate to be restored to employment.
  • The employee’s right to restoration to the same or an equivalent job upon return from leave.

The FMLA’s rights and responsibilities written notice requirement, as observed by the U.S. District Court for the Western District of Pennsylvania in Wilson v. Kuhn’s Quality Foods, 2006 WL 2709384 (W.D. Pa. Sept. 20, 2006), “is in addition to any employer handbook.” The FMLA regulations further mandate that the employer must provide the employee with rights and responsibilities notice at the same time the employer provides the employee with eligibility notice.

Designation Notice From Employer

Under the FMLA regulations, the employer is responsible in all circumstances for designating leave as FMLA-qualifying leave, and for giving the employee notice of the designation. The FMLA regulations further mandate that when the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee whether the leave will be designated and counted as FMLA leave within five business days, absent extenuating circumstances.

Medical Certification Under FMLA

The FMLA regulations authorize an employer to require that an employee’s leave to care for the employee’s immediate family member with a serious heath condition, or due to the employee’s own serious health condition that makes the employee unable to perform the functions of the employee’s job, be supported by a medical certification issued by a health care provider of the employee or the employee’s immediate family member. In other words, in order to ensure that an employee’s health condition or an immediate family member’s health condition constitutes a serious health condition within the meaning of the FMLA, employers have the right under the FMLA to require employees to support the need for FMLA leave with a medical certification issued by a health care provider.

Under the FMLA regulations, an employer must give notice of a requirement for medical certification and the notice must be in writing. At the time the employer requests medical certification, the FMLA regulations require the employer to inform the employee of the anticipated consequences of the employee’s failure to provide adequate certification. The FMLA regulations provide that in most cases, the employer should request that an employee provide medical certification at the time the employee gives notice of the need for leave or within five business days thereafter, or, in the case of unforeseen leave, within five business days after the leave commences. The FMLA regulations also mandate that the employee provide the requested medical certification to the employee within fifteen calendar days after the employer’s request, unless it is not practical.

As determined by the U.S. District Court for the District of Oregon in Washington v. Fort James Operating Co., 110 F.Supp.2d 1325 (D. Or. 2000), “an employee’s [medical] certification shall be sufficient if it states: (1) the date on which the serious health condition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider regarding the condition; and (4) if the leave is for the employee’s own serious health condition, a statement that the employee is unable to perform the functions of his or her job.”

Under the FMLA regulations, the employer must inform an employee whenever the employer finds a medical certification incomplete or insufficient, and must state in writing what additional information is necessary to make the certification complete and sufficient. The FMLA regulations further mandate that the employer must provide the employee with seven calendar days to cure any deficiency, unless not practicable under the circumstances despite the employee’s diligent good faith efforts to cure the deficiency. Under the FMLA regulations, if the employee fails to provide the employer with a complete and sufficient certification, despite the opportunity to cure the certification, the employer may deny the taking of FMLA leave.

Employee’s Rights On Return From FMLA Leave

An employee who takes FMLA leave is entitled to be reinstated to the same position the employee held when leave commenced, or to an equivalent position, on returning to work from FMLA leave. The FMLA regulations provide that an employee is entitled to such reinstatement even if the employee has been replaced or the employee’s position has been restructured to accommodate the employee’s absence. In guaranteeing an employee the right to employment restoration upon expiration of FMLA leave, the FMLA’s right to reinstatement means that an employer cannot fire an employee for taking FMLA leave.

An employee’s right to be restored to the same position, or to an equivalent position, is conditioned on the employee’s ability to perform the functions of the employee’s job. As explained by the U.S. Eighth Circuit Court of Appeals in Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847 (8th Cir. 2002), if the “employee is unable to perform an essential function of her position because of a physical or mental condition, including the continuation of a serious health condition,” upon expiration of FMLA leave, “the employee has no right to restoration to [the same position or] another position under the FMLA.” In other words, as pointed out by the Eleventh Circuit Court of Appeals in Rajmi v. Hospital Housekeeping Systems, LLC, Case No. 1:18-cv-00734 (11th Cir. April 6, 2021), “if, after twelve weeks, the employee cannot perform an essential function of her job, her employer may choose to end her employment.”

Discouraged From Taking FMLA Leave

An employer’s interference with an employee’s FMLA rights includes not only refusing to authorize FMLA leave, but discouraging an employee from using FMLA leave. The decision by the U.S. District Court for the Western District of Pennsylvania in Williams v. Shenango, 986 F.Supp. 309 (W.D. Pa. 1997) is illustrative of this principle. In that case, the employee notified the employer of the necessity of leave which was denied after the employer suggested that he request a different week for leave. The employee left work against orders denying him leave and may have believed that he was doing so at his own risk, and without the assurances provided under the FMLA. The Williams court reasoned that the employer’s lack of assurances could be construed as “discouraging” the employee from asserting FMLA rights. The Williams court explained that a jury could reasonably find that the employer’s initial response to the employee’s request may have “chilled” or otherwise discouraged the employee’s assertion of FMLA rights. Although the Williams court did not explain whether it was necessary for the employee to show that he knew of the rights provided by the FMLA in order for those rights to be effectively “chilled,” the U.S. District Court for the Southern District of California in Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192 (S.D. Cal. 1998) determined that an employee “can be discouraged from taking absences whether or not she knows that such absences could be covered by the FMLA as opposed to other arrangements an employer might make.”

Fired Before Entitled To FMLA Leave

In some cases, an employer will fire an employee who missed work because of a health condition before the employee’s health condition has developed into a serious health condition within the meaning of the FMLA. Under such circumstances, employers invariably argue that the employee’s FMLA rights were not interfered with because the employee did not have a serious health condition under the FMLA, and thus was not protected by the FMLA, when the termination occurred. As observed by the U.S. Eighth Circuit Court of Appeals in Caldwell v. Holland of Texas, Inc., 208 F.3d 671 (8th Cir. 2000), “an employer does not avoid liability by discharging an employee who takes leave in order to seek treatment for a condition that is later held to be covered by the FMLA.” Instead, the Caldwell court explained, “the employer who precipitously fires an employee, when the latter claims the benefits of leave under the FMLA, bears the risk that the health condition in question later develops into a serious health condition within the meaning of the [FMLA].”

Fired While On FMLA Leave

Under the FMLA, it is unlawful for an employer to terminate an employee because the employee has taken leave authorized by the FMLA. In most cases—but not all cases—terminating an employee while the employee is on FMLA leave constitutes an unlawful interference with the employee’s FMLA rights. However, as observed by the U.S. Tenth Circuit Court of Appeals in Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998), “an employee who requests leave or is on leave has no greater rights than an employee who remains at work.” Thus, the Gunnell court explained, “an employee who requests FMLA leave would have no greater protection against his or her employment being terminated for reasons not related to his or her FMLA request than he or she did before submitting the request.”

As determined by the Tenth Circuit in Smith v. Diefee Ford-Lincoln Mercury, Inc., 298 F.3d 955 (10th Cir. 2002), an employee may be dismissed while on FMLA leave “but only if the dismissal would have occurred regardless of the employee’s request for or taking of FMLA leave.” Moreover, as pointed out by the U.S. Third Circuit Court of Appeals in Katekovich v. Team Rent-A-Car of Pittsburgh, 36 Fed.Appx. 688 (3d Cir. 2002), “if an employer terminates an employee during the twelve weeks, but the employee would not have been able to return to work at the end of the twelve weeks in any event, the employer has not violated the FMLA.”

Employment Law Blog

As part of our commitment in assisting and protecting employees against unlawful employment practices, our Citrus County, Florida employment attorneys offer more information about the FMLA in our employment law blog.

Citrus County, FL Employment Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, our Inverness County, Florida employment attorneys have litigated employment law cases on behalf of Florida employees for more than two decades. If you have been fired for missing work because of medical problems or have questions about your FMLA rights, please contact our office for a free consultation with our Citrus County, Florida employment lawyers. You will received personalized and individual attention from our employment attorneys. Our employees’ rights law firm takes employment cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Inverness, Florida employment attorneys are ready to take your case and fight for your employee rights.

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