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One in every four women will experience domestic violence in her lifetime. An estimated 1.3 million women are victims of physical assault by an intimate partner each year. According to a study by the Centers for Disease Control and Prevention and National Centers for Injury Prevention and Control, the victims of domestic violence lost almost 8 million days of paid work as the result of violence by current or former husbands, boyfriends and dates. This loss is the equivalent of more than 32,000 full-time jobs and almost 5.6 million days of household productivity as a result of violence. While recovering from this type of serious abuse, many of these women whose income are relied upon to support their families worry and wonder, “Will I lose my job if I miss work to go to the hospital?”; or “Will my boss fire me if I show up to work with a black eye?”
As employment law attorneys, we get questions all the time from individuals about an employer can and cannot do. Sometimes we have to provide a tough answer: although some actions taken by an employer may seem unjust, unfair, unwise, or bad for business, Ohio is an at will state. As we have blogged about before, by “at will” we mean that the termination can occur with cause or without cause.
However, state and federal laws are in place to make sure that employees are not fired for unlawful reasons. For instance, based on race, gender, disability, religious preference, or pregnancy to name a few.
But what happens when an employee or a member of the employee’s family has a seemingly valid reason for missing work, for example, an employee was physically abused and as a result, the employee needs to seek medical attention or counseling, attend court dates for the criminal prosecution, or meet with legal counsel. Although we’d like to believe that an employer would be understanding and supportive in this hypothetical situation, technically, an employer may be able to lawfully terminate an employee if he/she is unable to make out a claim for FMLA retaliation, disability discrimination, or gender discrimination. If an employee is covered under the Family Medical Leave Act (“FMLA”) (the employee worked at least the 12 months that preceded the leave with at least 1250 hours worked during that time; and works for an employer that employs at least 50 people within a 75 mile radius), then the employee would be able to take off for the medical conditions and care related to the domestic abuse. Likewise, an employer cannot discriminate based on and would have to accommodate a disability or perceived disability that results from domestic abuse, such as a badly and/or permanently injured leg or eye. Gender discrimination may come into play if the employer allows men time off to deal with sports injuries, but will not make accommodation for women who suffer domestic abuse. Similarly, your job cannot allow male employees time off to appear for speeding tickets or other court appearances, but punish or discriminate against women who want to appear for domestic violence claims.
Now, that being said, if your employer disciplines everyone that takes off to appear in court, you can receive the same type of discipline for showing up in court. If a woman has not worked at least 12 months or 1250 hours, or works in a small shop with less than 50 people, the boss can fire a woman for missing work the day after her punches her unconscious and puts her in the hospital. And, that black eye is not a disability and will not likely qualify for time off under the FMLA. So, an employer can fire an employee because he does not want a salesperson with a black eye on the floor dealing with customers. Of course and spell level of hell is reserved for employers with no empathy that do these types of things, but it is not likely unlawful.
In August 2014, the legislature in the State of Massachusetts took action to prevent employee from being terminated after becoming a victim of domestic violence or abuse, or needing to care for a family member who was the victim of domestic violence or abuse and currently resides with the employee. The Massachusetts Domestic Violence Bill would provide up to 15 days of paid or unpaid leave for the victim or family member of a victim and applies to employers with 50 or more employees. Under the bill, the employer can request verification or documentation, but also is required to keep the reasons for the employee’s leave confidential.
Although this law is only in effect in the state of Massachusetts, it could be viewed as an example of a general trend that is popular with most U.S. citizens, that employers recognize the humanity and value of their employees. Should you find yourself in a similar situation as the hypothetical above and are wondering if your employer can legally terminate you, don’t be discouraged by the absence of this legislative protection in Ohio. The best thing to do is to contact an attorney who can evaluate your specific situation and determine if your personal circumstances are covered under a separate law.
As a blissfully happy married man, I could never imagine beating my wife. As an employer, I would do whatever I could for the health and welfare of my employees. Before I became an employment attorney, I would have found it hard to believe a boss firing a woman for getting beaten by her husband. Unfortunately, now I know that this is sadly a common occurrence.
Having to live with a being a victim of domestic violence is difficult enough without worrying about the effect it may have on your job. If you are in this position; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights Ohio employment 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?”, “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.