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Medical Leave Attorney Top Answer: Can my employer count the time I was on involuntary FMLA leave against me later if I actually need to take FMLA? Can my employer use forced FMLA leave to discriminate against me?

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The Family Medical Leave Act (“FMLA”) is a federal law that lets covered employees take extended time away from work, to handle certain family or medical needs. Federal law states that an employer is required to provide eligible employees with a maximum of twelve weeks of leave if the employer is a private business that employs fifty or more employees in twenty or more weeks in the current or prior calendar year. Employees who utilize FMLA are not entitled to be paid while they are on leave.

Our employment attorneys often hear from people who have had their right to take FMLA leave interfered with, or whose employer have retaliated against them for taking FMLA. As you imagine, many employers don’t like be required to hold a job open for someone who is away from work for as long as twelve weeks. Yet, every once in a while, we hear from people whose employers have forced them to take FMLA leave. Can they do that? Why would they?

Cleveland, Ohio, best, top, Brian Spitz, Employment, Lawyer, Law Firm, attorney, employer, employee, FMLA, Family Medical Leave Act, how do I, what should I do, my boss, my employer, medical leave, disability, disabled , discrimination, discriminate, imThe short answer is yes, an employer can require an employee to take FMLA leave. An employer might do this, for example, when you qualify for FMLA but opt to use paid time off or vacation time instead. They employer might chose to do this so they can limit the total amount of time you are off of work. Not very nice, but it is legal.

But what if you don’t qualify for FMLA, (because you are healthy and don’t otherwise qualify) but your employer forces you to take FMLA leave anyways? The answer to this question is that it is probably legal- with certain caveats attached.

If your employer has a good faith belief that you have a serious health condition, and thus qualify for FMLA, they can force you to take FMLA- even if you are healthy- until you obtain a certificate from a doctor allowing you to return to work. The Eighth Circuit Court of Appeals recently dealt with this exact situation, in Walker v. Trinity Marine Products, Inc.

In Walker, the plaintiff, who was a welder, was informed by her employer that they thought she had a serious health condition, and involuntarily placed her on FMLA leave until she obtained a doctors certificate saying she was fit for work (strangely, the opinion does not state what the medical condition was). Walker saw a doctor, got the certificate filled out, and returned it to the employer. The employer refused to accept the certificate and told Walker to get a second opinion. Walker got a second opinion and was again cleared to return to work. The employer still refused to allow Walker to return to work, and instructed her to go to a specific doctor. The third doctor also cleared Walker to return to work. However, when Walker finally presented her certificate to the employer, they told her she had exhausted her FMLA leave, and was terminated!

Of course, Walker then sued. Importantly, however, Walker only asserted claims against the employer for interference with her rights under the FMLA and FMLA retaliation as it related to her termination. She should have filed a disability discrimination claim, which covers perceived disabilities even when there is no real disability.

In reviewing Walker’s claim, the District Court found that (1) the employer had not interfered with Walker’s FMLA rights and (2) that she could not assert a claim for FMLA retaliation because she could not show that she had engaged in a “protected activity.”

Walker then appealed, and argued that because the employer forced her to take FMLA when she did not need it, it interfered with her ability to take FMLA when she actually needed it. Walker cited a Sixth Circuit case, Wysong v. Dow Chemical Co., in support of her position. As for Walker’s retaliatory termination claim, she argued that because she had utilized FMLA, she had “engaged in a protected activity” within the meaning of the FMLA. Finally, Walker argued that she was entitled to damages under the theory of equitable estopple.

The Walker Court found against Walker on each of her arguments. First, the court clarified Wysong, stating that because Walker was not actually denied FMLA leave, her claim for interference was not ripe:

[t]he Sixth Circuit emphasized that [a claim for interference based on forced leave] “ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.” Wysong, 503 F.3d at 449. … In our view, if forced leave can amount to interference with a right provided under the FMLA, it can do so only if the employer’s action prevents the employee from using benefits to which she is entitled

As for Walker’s retaliatory termination claim, the Court made quick work of it, finding that because Walker had admitted that she never suffered from a serious health condition, she was not covered by the FMLA, and was therefore not entitled to its anti-retaliation protections.

Walker tried to counter this reasoning with the equitable estoppel argument- that because the employer considered her to have a serious health condition when they forced her to take FMLA, the employer was bound by that designation, and she should be afforded the protections of the law. The Court wasn’t persuaded:

Assuming that estoppel may apply in the FMLA context, cf. Reed v. Lear Corp., 556 F.3d 674, 678 (8th Cir. 2009), a plaintiff invoking the doctrine must show that she has changed her position to her detriment in reasonable reliance on another’s misleading representation. Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51,59 (1984); see also Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 493-94 (8th Cir.2002). Walker has not established a submissible case of detrimental reliance.

Walker’s only colorable argument of reliance is that she sought several medical opinions based on Trinity’s insistence that she suffered from a serious medical condition that required a certification of fitness before she could return to work. The FMLA’s enforcement provisions, however, limit damages to “actual monetary losses sustained by the employee as a direct result” of the claimed interference with the employee’s FMLA rights. 29 U.S.C. § 2617(a)(1)(A)(i)(II). Walker has not identified any actual monetary losses. The inconvenience of traveling to medical appointments and enduring medical examinations is not a cognizable detriment for purposes of an equitable estoppel claim invoking the FMLA. The district court thus correctly dismissed Walker’s claim to entitlement by estoppel.

Thus, Walker was unable to prevail on any of her claims. If this seems like a really unfair outcome, that is because it is – the facts are such that one wonders why the employer kept telling Walker she could not return to work. Certainly, something else was going on. In my view, it would have been worthwhile for Walker’s lawyers to explore what the employer was motivated by. At the very least, the employer perceived Walker to have some sort of health condition that prevented her from working- thus, they arguably perceived Walker as disabled.

Thus, this raises the question- what if the employer forces the employee to take FMLA leave in bad faith? That is, the employer knows the employee doesn’t qualify for FMLA, but forces them to take leave anyways as a means of discriminating against that employee and creating a situation in which the employer merely needs to wait out the employee’s FMLA before terminating them? As Walker and Wysong demonstrate, a non-eligible employee usually cannot maintain a claim for FMLA interference unless it actually (as opposed to hypothetically) interferes with their ability to utilize FMLA leave later on. However, if an employer forces someone to take FMLA for a discriminatory purpose- say to get rid of someone in a protected class, that employee might have a claim for discrimination. And, as discussed above, the only way to force an employee onto FMLA is to perceive a disability.

If you are disabled or your employer perceives you as being disabled; or your employer is either preventing your from taking leave under the FMLA, forcing you take FMLA against your will, or retaliating against you after you took FMLA leave, or you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer or FMLA lawyer, then the best thing to do would be to call the right attorney to schedule a free and confidential consultation at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disables employees’ rights under the FMLA, the Americans with Disabilities Act (“ADA”), and Ohio law.


The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?” or “is my employer allowed to discriminate because I’m disabled?”, your best option is to contact an Ohio medical leave attorney or disability lawyer to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.