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Can I Be Fired If I Just Ask For Sick Time, But Am Eligible For FMLA? I Need A Lawyer!

On Behalf of | Dec 30, 2014 | Family Medical Leave Claims, Wrongful Termination |

Best Ohio FMLA Lawyer Response: When I ask my boss for time off for a medical condition, do I need to specifically ask for FMLA leave to receive time off? Can my employer be held liable for violating the FMLA if it knows I need FMLA and refuse to offer FMLA paperwork? Can I sue for wrongful termination if I was fired for asking for time off for surgery?

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As our employment discrimination lawyers have discussed medical leave issues here, the Family Medical Leave Act (“FMLA”) provides an eligible employee up to twelve weeks of unpaid leave to care for the serious medical condition of specific family members, the birth of a child, or their serious health condition. Under the FMLA, an employer is obligated to provide eligible employees paperwork upon a request. It is very easy to find a violation of the FMLA if an employee asks the employer for FMLA leave and despite being eligible to take leave, is outright refused and terminated on the spot. What happens when the employee tells the employer they “need more sick time” or starts to use up their sick leave for a health condition. If you do not use the “magic words” FMLA, can the employer still be held liable for failure to provide the medical leave?

Under the FMLA, it is the employer that is legally obligated to offer an employee the opportunity to take FMLA leave when they receive information that puts them on notice that the employee needs to take leave. The request or information does not need to specifically state “FMLA leave.” The employee’s request merely needs to provide the employer enough information to know that the condition is covered under the FMLA. For example, Heidi Hypo is an employee of Chondria Corporation. Heidi is an eligible employee with sufficient hours for FMLA and Chondria Corporation is a very large company that must abide by the FMLA. Heidi shows up to work and tells her boss that she needs numerous days off from Chondria Corporation for an upcoming surgery she needs for a malignant brain tumor. Heidi never uses the words “FMLA” or “protected leave” she just merely asks Chondria Corporation if she has enough accrued sick leave and vacation time to recover from her upcoming brain surgery.

I want to sue my company for wrongfully firing me during my FMLA leave. Call attorney Brian Spitz and the employment law lawyers at Spitz, The Employee’s Law Firm to get a free initial consultation regarding your FMLA, medical leave and wrongful termination claims.

Chondria Corporation, after receiving the information from Heidi, is under an obligation to provide Heidi with FMLA paperwork for her surgery. It did not need to receive a blaring notice Heidi would request FMLA nor did Heidi need to request “FMLA leave. Chondria only needed information that showed Heidi had a covered condition under FMLA and may need to take protected leave.  Once Chondria Corporation provides Heidi with the required paperwork for her FMLA leave, Heidi is then required to submit the paperwork in accordance with the company’s policy along with medical information regarding her serious health condition.

This issue was addressed by United States District Court, S.D. Ohio, Eastern Division in O’Hara v. Mt. Vernon Bd. of Educ. In this FMLA case, Melanie A. O’Hara was a school teacher that requested sick leave for pregnancy and parental leave. While there was a dispute of fact as to whether O’Hara’s request actually mentioned FMLA, the District Court concluded that it did not matter:

The defendants argue that the plaintiff did not provide adequate notice in her request for FMLA leave because both the form of the notice and the timing of the notice were inadequate. First, this Court notes that an employee is not required to ask for FMLA leave specifically, but must merely provide a minimal level of information about the need for leave. See 29 U.S.C. § 2612(e)(1) and (2) and 29 C.F.R. § 825.301 and § 825.303; 58 Fed.Reg. 31794, 31806 (Interim Regulations) (§ 826.302 and § 825.303). See also, Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir.1995). Furthermore, in the exchange of correspondence, defendants repeatedly refer to the FMLA. Therefore, it is incongruous for the defendants to claim that the plaintiff failed to provide adequate notice; defendants never informed the plaintiff that her request for FMLA leave was untimely, and the exchange letters outline a protracted discussion of details necessary to the FMLA, i.e. insurance coverage, etc. The notice need only briefly state why the employee requires leave and, in the case of foreseeable leave, it should state the length of leave requested. See, Hammon v. DHL Airways, Inc., 980 F.Supp. 919 (S.D.Ohio 1997); Brannon v. OshKosh B’Gosh, Inc., 897 F.Supp. 1028, 1038 (M.D.Tenn.1995); Reich v. Midwest Plastic Eng’g ., 1995 WL 514851 (W.D.Mich.1995). Once an employee requests leave, the employer bears the burden of requesting any additional information it needs.

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.


This employment law website is an advertisement. 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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