Best Ohio FMLA Lawyer Answer: Can my employer fire me for asking to take FMLA leave in the future? Can my boss fire me for asking about FMLA leave even though I was not qualified for FMLA leave? Can I sue my job for wrongful termination because I was fired today when I told my manager that I need medical leave from work?
As our employment attorneys have previously explained, it is unlawful for an employer to fire an employee because the employee took leave under the Family and Medical Leave Act (“FMLA“) to nurse a serious injury or medical condition. (See Can I Sue If I Was Fired The Day That I Returned From FMLA Leave?; Can My Boss Retaliate Against Me Because I Used FMLA For Alcohol Dependency? Do I Have A Claim For FMLA Retaliation?; What Hours Count Towards My FMLA Eligibility?; Can My Job Deny Me Part Time Hours Under The FMLA?; and Can My Job Block Me From Coming Back From FMLA Leave? ).
But, does that mean that an employee has to qualify for FMLA leave- work for a covered employer for a year or 1240 hours – for that employee to be protected against FMLA retaliation? For example, say you have been working or an employer for a year but only worked about say 1200 hours, and thus, are not are not eligible for FMLA. Then you find out that you have a serious medical condition, you’re having a baby, or your husband or wife gets hospitalized because of a flesh eating virus or something awful. By mistake, you think that you are eligible for FMLA and put in a request to HR that you be given protected medical leave. Can your asshole cold hearted boss legally fire you just for asking for leave. Remember, that in Ohio, it is an employment at will state, which means that your manger, supervisor, or boss can fire you for any reason or no reason unless it is against an expressly written law. So, is there an employment law that would protect you from retaliation and/or wrongful termination in this situation?
According to the United States Court of Appeals for the Eleventh Circuit, the answer is simply, no! In Pereda v. Brookdale Senior Living Cmtys., Inc., Kathryn Pereda was pregnant and wanted to make plans for the delivery of her baby. So, the employee spoke to her employer and told HR that she would be requesting for FMLA leave in the near future. Since the Pereda had not worked for Brookdale for the minimum number of hours, her boss told her that she did not qualify FMLA leave. Later, her employer terminated the Pereda in retaliation for asking for FMLA leave. Feeling wronged, the employee sued. In response, the employer argued that because the Pereda was not qualified for FMLA when she asked to go on leave, FMLA did not protect her as an employee from retaliation. The trial court agreed and threw out the Pereda’s case before she could present it to a jury. Upon reaching the Eleventh Circuit, the court held as follows on the FMLA issues:
We hold that a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave. Protecting both reflects that the FMLA should be executed “in a manner that accommodates the legitimate interest of employers,” 29 U.S.C. 2601(b)(3), without abusing the interests of employees.
Under the FMLA an employee need not be currently exercising her rights or currently eligible for FMLA leave in order to be protected from retaliation. The FMLA makes it “unlawful for any employer to interfere with, restrain or deny the exercise of or the attempt to exercise, any right” provided under the FMLA. 29 U.S.C. § 2615(a)(1). The FMLA also protects employees and prospective employees even if the individual is not currently eligible or entitled to leave. See 29 C.F.R. § 825.220 (prohibiting employers from discriminating against employees or prospective employees who have previously used FMLA leave); see also Potts v. Franklin Elec. Co., No. Civ. 05-443, 2006 WL 2474964, at *1 (E.D.Okla.2006) (holding an employee who gave notice of expected FMLA leave could bring a retaliation claim even though a triggering event never occurred). In Potts, the district court reasoned that “[i]f courts were to read the FMLA to allow employers to dismiss ineligible employees who give advance notice of their need for FMLA leave, it would open a large loophole in the law and undermine the plain language and purpose of the notice requirement in § 2612(e)(1).” 2006 WL 2474964, at *3. Similarly, the FMLA protects Pereda from retaliation, even though at the time of her request and termination, she was not yet eligible or entitled to FMLA leave because she had not yet given birth.
With this holding, the court of appeals reversed the dismissal of Pereda’s case and she has a chance to take her case to a jury. As explained by the court, employees need not be qualified under FMLA in order to get FMLA retaliation protection.
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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