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A recent case out of the Seventh District Court of Appeals, Hull v. Astro Shapes, Inc., 2011-Ohio-1656, emphasized the importance of immediately contacting a knowledgeable employment attorney to deal with medical leave issues when any issues arises with an employer.  In the case, “Hull began work at Astro Shapes on June 7, 1999, as a janitor and fork-lift driver. According to Hull, when he was hired, he disclosed to Astro Shapes that he suffered from chronic obstructive pulmonary disease (COPD) and back problems.”

According to the opinion, the defendant, Astro Shapes’ attendance policy permitted Astro Shapes to give its employees “points” if the employee is absent from work. If an employee accrues too many points, he or she may be terminated. Under Astro Shapes’ attendance policy, the reason for the employee’s absence is not taken into account in enforcing the attendance policy, unless the absence is excused under the Family and Medical Leave Act (“FMLA”).   Due to breathing problems and back pain, Hull was routinely absent from work and eventually applied for FMLA leave. As part of his application, he gave Astro Shapes a certification from his treating physician.  Astro Shapes based upon this certification was granted provisional FMLA leave. But, in August 2006, Astro Shapes requested that Hull submit to a second medical examination as allowed by the FMLA. The second doctor disagreed with the determination made by Hull’s physician and disputed that Hull’s conditions qualified his leave under the FMLA.  A third examination and opinion agreed with the second.

Hull filed a charge with the Ohio Civil Rights Commission asserting violations of the FMLA, the Americans with Disabilities Act (ADA), and state civil rights laws under R.C. § 4112. Six months after his charge was dismissed by the U.S. Equal Employment Opportunity Commission (EEOC), Hull filed a lawsuit. The trial court dismissed Hull’s federal law claims as time-barred and ruled that he had not established a prima facie case under the state disability discrimination law.

The Seventh District Court of Appeals affirmed that the dismissal of the ADA claim because he missed the 90-day deadline after receiving his dismissal notice from the EEOC. But Hull’s FMLA claim was not time-barred. Because the EEOC does not enforce the FMLA, the deadline for filing FMLA claims is two years from the alleged violation. However, the trial court’s error was harmless because Hull was not able to show that he was entitled to FMLA leave. The second and third medical opinions were permitted under the FMLA, and the third opinion is final and binding when it is required to resolve conflicting opinions.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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