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Top FMLA Lawyer Reply: Am I Eligible For Medical Leave From My Job?

On Behalf of | Apr 19, 2014 | Family Medical Leave Claims, Wrongful Termination |

Best Medical Leave Attorney Answer: How do I get FMLA leave? Do I qualify for FMLA? Can I be fired for taking medical leave? Is my job safe when I’m out on FMLA leave? How do I find an FMLA lawyer in Ohio?

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Our employment lawyers frequently fight defense employment attorneys on Family Medical Leave Act (“FMLA”) claims. These fights usually center on whether the employee was fired for taking FMLA or for some other lawful reason. This is the fight over whether the employers’ reason for the firing is real or pretext for a wrongful termination. It is very unusual to have the fight center on eligibility. Why? Because qualifications to be eligible for FMLA are rarely open to debate. Under the FMLA, an eligible employee must have worked at least 12 months and 1,250 hours of service within the last year for an employer that has 50 or more employees in 20 or more workweeks in the current or preceding calendar year; and at a location where the employer has at least 50 employees within 75 miles. An employee may assert an FMLA interference claim based on interference with the right to take the full amount of FMLA leave, the denial of reinstatement after taking FMLA leave, or the denial of initial permission to take FMLA leave. Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). Thus, the focus of the dispute is usually on the interference, not the eligibility.

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But these disputes over eligibility do arise. Let’s look at Oliver v. The Williams Companies, Inc. In that case, Robin Oliver experienced health problems related to an undiagnosed abdominal ailment in October 2009 and requested FMLA leave, which was approved by her job’s third party administrator, UNUM. Over the following year, Oliver used intermittent FMLA leave. At someone point, Oliver’s supervisor started questioning whether Oliver was actually entitled to FMLA leave for all of the leave taken. On January 25, 2011, Williams mailed a letter to Oliver terminating her and stated that the decision was made to fill her position due to “on-going business needs.” In response, Oliver asked about her termination and her eligibility for FMLA leave. On February 4, 2011, Williams wrote to Oliver that she had worked only 1,248 hours in the 12 months before her request for FMLA leave – two hours less than minimum hours needed to be eligible for FMLA leave. In considering a motion by the employer to dismiss the case by way of a motion for summary judgment, the trial court held:

It is generally the plaintiff’s burden to establish that she was entitled to FMLA leave. Been v. New Mexico Dep’t of Information Technology, 815 F. Supp. 2d 1222 (D.N.M. 2011). Plaintiff cites 29 C.F.R. § 825.110(c), which provides that “[i]n the event an employer does not maintain an accurate record of hours worked by an employee . . . the employer has the burden of showing that the employee has not worked the requisite hours.” There is an inconsistency in the record as to the number of hours worked by plaintiff. Hamil testified at her deposition that plaintiff had worked 1,071 hours in the 12 months preceding her request for FMLA leave, but defendant sent a letter to plaintiff on February 4, 2011 stating that plaintiff had worked 1,248 hours. This suggests that there is an inconsistency in defendant’s record keeping and, viewing the evidence in a light most favorable to plaintiff, the Court finds that there is a genuine dispute as to whether defendant kept accurate records of plaintiff’s time or if it supplied accurate records to its third-party administrator for FMLA leave. There is also evidence in the record that plaintiff contacted Fielding in January 2011 about her health condition, and plaintiff states in an affidavit that Fielding assured plaintiff that her job was secure. … There is no evidence in the summary judgment record that plaintiff was warned before her termination that her job was in jeopardy or that she could likely become eligible for FMLA leave by working two more hours.

Although the Tenth Circuit has not expressly adopted equitable estoppel in FMLA cases, it has noted that there are circumstances similar to this case in which the doctrine has been applied to prevent a defendant from challenging a plaintiff’s eligibility for FMLA leave. Banks v. Armed Forces Bank, 126 Fed. App’x 905, 907 (10th Cir. 2005); see also Kosakow v. New Rochelle Radiology Assoc., P.C., 274 F.3d 706, 722 (2d Cir. 2001) (employee could have postponed surgery and obtained eligibility for FMLA leave, but employer intentionally failed to advise employee that she would not be eligible for leave if she proceeded with the surgery as scheduled). This could be an appropriate case in which defendant could be estopped from challenging plaintiff’s eligibility for FMLA leave, because a reasonable jury could find that defendant discouraged plaintiff from returning to work to become eligible for FMLA leave. Even though plaintiff has not conclusively established that she was eligible for FMLA leave in January 2011, she has raised a genuine dispute as to a material fact showing that equitable estoppel could prevent defendant from raising this defense, and defendant’s motion for summary judgement (sic) should be denied as to plaintiff’s FMLA interference claim.

So what does this mean in plain English? If your boss has told you that you are eligible for FMLA or that you have a certain amount of time left on your FMLA, the employer might be stopped from changing their position on that issue later in order to fire you.  If your employer tells you that you are eligible for FMLA or tells you that you have a certain amount of time remaining, get it in writing.  If the boss will not confirm in writing, send an email or a fax confirming what was said.  The email or fax can be appreciative, something to the effect of, “thank you for letting me know that I am qualified for FMLA,” or “I wanted to thank you for keeping me in the loop on how much FMLA time that I have left. It is good to know that I have x number of days left.”  Getting an email back acknowledging or saying you’re welcome, confirms that you have been given the information.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


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?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney 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.

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