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Can My Employer Deny Me Part Time Hours Under The FMLA? Help, I Need A Lawyer!

On Behalf of | Sep 30, 2015 | Family Medical Leave Claims, Wrongful Termination |

Best Ohio FMLA Attorney Answer: Can I get FMLA for my pregnancy related hour restrictions? Can I use medical leave to work part-time? Can I sue for wrongful termination if I was fired today for asking for medical leave?

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As employment law attorneys have previously discussed, the Family and Medical Leave Act (“FMLA“) is a federal law that requires covered employers to provide up to twelve weeks of unpaid leave to an eligible employee to take care of their own serious health condition, or for the serious health condition of a family member. (See Can My Employer Require A Second Opinion Before Giving Me FMLA? I Need A Lawyer!; FMLA Question: Can Daddy Take Maternity Leave?; Is My Health Issue Serious Enough To Get FMLA Leave? I Need A Lawyer!; and Top Medical Leave Lawyer Response: What Can I Do If I Was Fired For Taking Approved FMLA Leave?). here are a few basics about FMLA coverage and who gets it. First of all, to take FMLA leave you must work for something called a “covered employer.” A “covered employer” is just a fancy way of saying a company with 50 or more employees, or a government agency, elementary school, or secondary school.

But wait, there is more! Not only do you need to work for a “covered employer” but you also need to have worked there for at least 12 months. And you must have worked for at least 1250 hours in those last 12 months. That works out to about 24 hours per week. And last but not least, it depends on where you work. Your company must have 50 employees within 75 miles of your jobsite.

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Men have the same rights as women to take FMLA leave to bond with their child. A new dad must take their FMLA leave within one year of the child’s birth or adoption. Paternity leave must be taken as a continuous block of leave unless the employer agrees to allow intermittent leave (for example, a part-time schedule).

FMLA leave is unpaid. However, you can use sick time, vacation time, or PTO so you continue to get paid when you are on leave. You must follow your employers rules for taking sick time, vacation time, or PTO, such as submitting a request form, even if you are taking FMLA. What if you don’t want to use your paid leave? Your employer can still require you to use it. If you have the time off anyway because of vacation time or PTO, why would you want to use FMLA? The two main reasons are:

  1. As long as you can return to work before you use all your FMLA, you must be returned to the same job.
  2. Time off under FMLA may not be held against you.

A recent Eighth Circuit Court of Appeal case, Wages v. Stuart Management Corporation, highlights the protection the FMLA gives to employees. The employee, Ena Wages, was a full-time caretaker at Stuart Management Company. While she was employed by Stuart Co., Ena became pregnant. Ena had severe abdominal pain, so her doctor instructed her to not do any vacuuming or mopping. When Ena gave Stuart Co. the doctors note, they assigned accommodated her and assigned the vacuuming and mopping to other employees. The next month, on November 12, Ena’s abdominal pain was so bad that her doctor limited her to 20 hours per week. Edna gave Stuart Co. a doctor’s note with the 20 hour restriction the next day. On her next scheduled work day, November 16, Edna was terminated. Edna was terminated because Stuart Co. was “unable to accommodate the work restrictions provided by [her] physician.”

In an effort to try and avoid and FMLA claim, the employer terminated Ena one day before her one year anniversary, hence presumably blocking the one year requirement under the FMLA.

But, Ena was granted summary judgment in her favor on her case. Summary judgment is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial.

To prevail on a FMLA entitlement claim, the employee needs to show that they were an eligible employee and they gave adequate notice to the employer of their need for FMLA. As discussed above, you must work for a company for a year to be eligible. In Ena’s case, she was fired after working for Stuart Co. for exactly one year; she was hired on November 17, and fired on November 16 the next year. Because the employer fired Ena on her anniversary, she had worked 366 days – one day more than a year. As the Court of Appeals observed:

The issue is whether Wages had been employed by StuartCo for at least 12 months. Uncontroverted evidence demonstrates that Wages was employed by StuartCo for 12 months. Wages began her employment on November 17, 2008. As a result, she needed to work until November 16, 2009, to satisfy the 12-month requirement. In a letter informing Wages of StuartCo’s decision to terminate her employment, StuartCo stated “[Wages’s] employment with StuartCo has been terminated. Our records will reflect today as [Wages’s] last day worked.” (emphasis added). The letter was dated Monday, November 16, 2009. Wages’s timecard for November 16 also shows that she worked on November 16. November 17 would have been the first day of Wages’s second year with StuartCo. Because she satisfied the 12-month requirement, Wages was an eligible employee as defined by the FMLA.

As unfair and seemingly arbitrary as it may be, had the employer fired Ena two days earlier, on day 364, she would have lost her FMLA case as a matter of law. Thus, had someone in HR understood how to actually calculate the FMLA dates, StuartCo would have been home free. Employees should also understand that if they are approaching their one year anniversary, it may be better to wait until after it passes to ask for medical leave, even if it means using up vacation time to get to that point.

Normally an employee must give 30 day notice of FMLA leave “if practicable.” But, if there is a change in circumstance or a medical emergency, notice must be given “as soon as practicable.” Here, Ena’s doctor told her that she needed to go to a part-time schedule for the rest of her pregnancy, and she gave StuartCo a doctor’s note the next day. The court found the doctor’s note was sufficient notice because it showed Ena needed leave, and gave the reason and the restriction; the note did not mention FMLA, nor did it need to. It qualified as “as soon as practicable” because Ena submitted the note the day after she received it. That was all Ena had to show to prevail on her FMLA entitlement claim; she was an eligible employee (she had worked at Stuart Co. for a year) and she gave notice (turned in a doctor’s note). On this point, the Court held:

Wages needed to provide adequate notice to StuartCo. The notice must be “sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and [the employee must inform the employer of] the anticipated timing and duration of the leave.” 29 C.F.R. § 825.302(c). … StaurtCo argues that Wages failed to inform StuartCo of her need for leave. It asserts the doctor’s note was insufficient and Wages never said or did anything beyond submitting the doctor’s note. We disagree. The doctor’s note referenced the reason (her pregnancy) and the need for leave. See Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir. 2008) (noting an employee does not need to invoke the FMLA by name to put the employer on notice of her need for FMLA leave). The doctor’s note also listed the restriction: no more than 20 hours of work per week. Further, our review of the record demonstrates Wages acted as soon as possible and practical. Wages submitted the doctor’s note to StuartCo on November 13, one day after receiving the note.

To prevail on a FMLA retaliation claim, the employee needs to show they exercised rights provided by the FMLA, they suffered an adverse employment action, and there was a causal connection between the exercise of rights and the adverse action. Since the court had already decided that Ena was eligible for FMLA and gave notice, she exercised her rights. And being terminated is unequivocally an adverse employment action. So the only thing Ena really had to show is that Stuart Co. terminated her because she was exercising her FMLA rights. Stuart Co. admitted that it terminated her because she requested reduced hours, but a reduction in hours is the very thing the FMLA protects. Thus there was a causal connection between the FMLA request and the termination. This was a textbook case of FMLA retaliation.

As part of an FMLA retaliation case, the employee must also show that his or her exercise of FMLA rights was the proximate cause of the employer taking an adverse action against the employee. In this case, the Court of Appeals held that there was no doubt on this issue:

Wages provided StuartCo with the doctor’s note on Friday, November 13, which restricted her work week to no more than 20 hours. The letter indicated the leave was pregnancy related, and therefore protected by the FMLA. On the same day, Beddow, Fulton, and Stachowski decided to terminate Wages’s employment. Fulton stated in her deposition that although Wages was “getting by” with the initial restrictions (no snow removal, mopping, or vacuuming), her reduction in hours indicated Wages would not be able to complete “the essential functions of her job.” As a result, StuartCo provided Wages with a termination letter that stated, “We are unable to accommodate the work restrictions provided by your physician.” StuartCo has pointed to no evidence to demonstrate Wages would have been fired based on her initial restrictions alone. Rather, StuartCo’s decision to fire Wages was directly connected to her request for a reduction in hours, which is protected under the FMLA. … The FMLA is designed specifically for situations like this, where a low-wage employee, such as Wages, needs temporary protection

Interestingly enough, this case will go to trial, but only on the issue of damages. The judge had originally awarded Ena over $160,000 in back pay, damages, and interest. However, Stuart Co. had requested a jury trial on all issues so triable, and that includes damages, and the Court of Appeals held it was an error for the judge to decide damages. So,the case was remanded for the jury to decide just how much Ena gets. We will be keeping an eye out for that decision, because it could backfire on Stuart Co. and they could end up owing Ena even more than $160,000!

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.


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