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Best Ohio FMLA Lawyer Help: Can my employer deny me FMLA leave because I take anti-anxiety medication on as-needed basis? Can I sue for wrongful termination if I am fired because my employer perceives my anxiety as a disability? How do I request medical leave from my job?

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Anxiety is a serious medical condition that affects 18.1 percent of the United States population. (See NIH). That equates to 57,720,900 Americans that suffer from anxiety. Treatment for anxiety can take a wide variety of forms, for some people it means taking a medication every day, for others medication is only necessary when they feel their anxiety becomes overwhelming. But what does that mean for the millions of workers with anxiety that need to go to work every day in order to live.

Employees with anxiety can request work accommodations and are protected from discrimination under Americans with Disabilities Act (“ADA“) as well as Ohio’s R.C. § 4112.02. (See ADA Law: How Do I Get A Disability Accommodation At Work?; Is Alcoholism A Disability Under The ADA?; My Job Is Discriminates Against Me Because I’m Disabled!).

Additionally, the Family and 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. (See Can My Boss Fire Me Because I Used FMLA Leave?; Is A Doctor Note Required For Each Intermittent FMLA Leave?; Do I Have A Claim For FMLA Retaliation?; and Can My Boss Control When I Take FMLA?) If the employer is a private business engaged in, or affecting, interstate commerce that employed fifty or more employees in twenty or more weeks in the current or prior calendar year, that employer is required to offer twelve weeks of unpaid leave for a qualifying medical condition.

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An employee is a covered employee if he or she worked for the employer for at least l, 250 hours in the proceeding twelve months before taking leave. (See Top FMLA Lawyer: Am I Eligible For Medical Leave From My Job?; Are All Employees Eligible For FMLA?; and What Hours Count Towards My FMLA Eligibility?)

Two different types of claims can be brought under the FMLA. The FMLA retaliation claim, when an employer terminates an employee for taking FMLA and FMLA interference when an employer wrongly denies FMLA leave.(See Romans v. Michigan Dept. of Human Servs., 668 F.3d 826, 840 (6th Cir. 2012))

If an employer denies your rightful claim to FMLA leave then they are interfering with your right to take protected FMLA leave. To show that an employer wrongfully denied your FMLA leave you must show that (1) you are an eligible employee, (2) the employer is subject to the FMLA, (3) you were entitled to leave under the FMLA, (4) you gave the employer notice of your intention to take FMLA leave, and (5) the employer denied FMLA benefits to which you were entitled.

To show that you were entitled to take leave under the FMLA, you must show that you suffered from a serious medical condition. According to regulations issued by the Department of Labor (“DOL“), a serious medical condition is:

 “[a] period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

(3) The requirement in paragraphs (a)(1) and (2) of this section for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.

(4) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.” 29 C.F.R. § 825.115(a)(1)-(4)

Still, many employees continue to ask: Can my employer deny me FMLA leave for my serious anxiety disorder because I take medication on an as needed bases? The answerer depends on the particular circumstances of your case but as the United States District Court for the Northern District of New York recently held in Barber v. Von Roll USA, Inc. that a company cannot deny or interfere with your FMLA based solely on taking anxiety medications on as-needed bases.

In Barber v. Von Roll USA, Inc., Barber alleged FMLA interference after his employer terminated him for missing work, absences which Barber requested FMLA leave. Barber suffered severe anxiety due to continuing harassment by a co-worker. The co-worker repeatedly used physical violence and threats to intimidate fellow co-workers. The threats included smashing an office chair and using the chair leg to smash a dielectric machine, and then throwing the broken chair across the work room; and threatening to smash Barber’s head with a baseball bat. Further escalating the situation, the co-work then brought in a box of ammunition and specifically wrote Barber’s initials on one of the bullets. After the bullet incident, Barber started experiencing severe anxiety, intense feelings of panic, emotional distress, and fear for his personal safety. Barber had an appointment with physician’s assistant who diagnosed Barber with an anxiety disorder and directed Barber to remain out of work until October 22. Barber took a leave of absence based on his physician assistant’s advice and began taking anti-anxiety medication on as needed bases. When again he began experiencing anxiety related to the treatment by his co-worker his doctor recommended another leave of absence. Von Roll USA denied his FMLA request stating that his anxiety did not qualify for FMLA because he took his anxiety medication on an as needed bases and therefore was not receiving continuing treatment and because he only saw his doctor once in 30 days. Barber was then terminated for absences.

The court denied Von Roll USA’s motion for summary judgment and allowed Barber’s case to move forward. The court stated that the intermittent use of anti-anxiety medication, even though it was at the employee’s self-direction, was enough to qualify Barber’s anxiety as a serious medical condition when paired with the follow up treatment with his doctor. And even though Barber saw his physician assistant only once before his requested leave because he had a follow up appointment within the thirty days of the onset of his second bout of anxiety that he kept, he was allowed to proceed with his case.

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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