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My Job Doesn’t Have FMLA, Can I Get Medical Leave?

On Behalf of | Jan 22, 2020 | Age Discrimination, Disability Discrimination, Employment Discrimination, Family Medical Leave Claims |

My Job Doesn’t Have FMLA, Can I Get Medical Leave?

Best Ohio Disability Discrimination Attorney Answer: Do I qualify for FMLA? How do I qualify for medical leave of absence? Can I still take medical leave if my employer does not qualify for FMLA? How long can you take a medical leave from work? Can my boss fire me for asking to take medical leave for a serious illness? How do I request time off from work to get medical treatment? My Job Doesn’t Have FMLA, Can I Get Medical Leave?

Nobody gets up in the morning and plans to have a
medical emergency or family medical care issue. Every employee would rather
just keep waking up every morning to the same routine – shower, brush your
teeth, get dressed, maybe eat some breakfast, and head into work. My
grandmother always like the saying, “man plans, and god laughs.” When that
unexpected poop storm hits your life, it ripples out to the rest of your life. Once
of the primary concerns is, will I lose my job because I have to be
hospitalized or will I be fired because I need time off for medical care or to

Now you may be thinking “wow, it sure would be nice
if my work let me keep my job if I ever have to take time off if I get sick or
injured.” As regular readers of our employment law blog have hear our lawyers
previously discuss, there is a federal law that offers just that kind of
protection under the Family and Medical Leave Act (“FMLA”). (See Can
My Boss Stop Me From Taking Medical Leave Under The FMLA
; Top
Lawyer: What Care For Family Is Covered Under The FMLA
; Do
I Get Paid On FMLA Leave?
; What Kind Of
Documents Do I Have To Give My Boss To Get FMLA? I Need The Top Medical Leave
Lawyer In Ohio!
). The FMLA allows for up to 12 weeks of protected unpaid leave to an
employee so that the employee may deal with serious medical issues that either
they themselves or a close family member is suffering from. The FMLA also makes
it unlawful for employers to fire, discriminate or otherwise retaliate against
an employee who chooses to exercise his or her rights under the FMLA.
Importantly, when an employee returns from leave granted by the FMLA, he or she
is entitled to be restored to his or her former job, or to an equivalent job
with equivalent pay, benefits, and other terms of employment. (See Can I Be Fired For
Asking About FMLA?
; My Employer Demoted
Me Because I Took FMLA Leave!
, Can My Boss Stop Me
From Taking Medical Leave Under The FMLA?
; and My Employer Demoted Me Because I Took FMLA Leave! I Need
The Best FMLA Retaliation Lawyer In Ohio
! ).

Unfortunately, the FMLA does not apply to all
employees. The FMLA only applies to employers that are a private business
engaged in, or affecting, interstate commerce, that employs fifty or more employees
within seventy-five miles of each other. These 50 employees must have worked
for the employer for twenty or more weeks in the current or previous calendar
year. As if those weren’t enough restrictions, an employee who works for a
covered employer is only eligible for protected leave if he or she worked for
the employer for at least twelve months, and for at least 1,250 hours over
those twelve months immediately before the employee applies for the FMLA
protected leave. For more about the FMLA check out some of our past blog posts.

Doesn’t Have FMLA

Right about now you
may be thinking “gee, those sure are a lot of requirements, and I am not sure,
but I do not think I am covered under the FMLA. Do I have any other options if
I have a serious medical condition and I need to take a medical leave of
absence?” I am glad you asked! Because there certainly is another option! A
leave of absence may qualify as a reasonable accommodation under the Americans with Disabilities Act (“ADA”)
and its Ohio counterpart, R.C. § 4112.02(A). These federal and state laws protect employees
from being discriminated against by their employers on the basis of their
actual or perceived disability, including being fired, being paid less, being
demoted, being denied a promotion, or being treated differently than any other
similarly situated non-disabled employee. (See My Job Is
Discriminates Against Me Because I’m Disabled!
; Top Disability
Discrimination Lawyer: Is It Disability Discrimination If My Job Will Not
Accommodate My Anti-Social Disorder?
; and Is It Wrongful
Termination To Fire Disabled Workers?
). These laws also prohibit employers from making
pre-employment, disability-related inquiries of job applicants as well as
making it unlawful for an employee’s boss, manager, or supervisor to retaliate
against them for requesting a reasonable accommodation. Just as importantly,
the ADA requires employers to provide reasonable accommodations to employees
who, either with or without such accommodations, are qualified to “perform the
essential functions of the employment position.” (See
How Do I Get A
Disability Accommodation For My Job?
; Can A Service Dog Be
A Disability Accommodation At My Job?
; and Does My Job Have To
Accommodate My Paralysis?
). As we have blogged reasonable accommodations come in all shapes and
sizes, including schedule changes. (See Can A Schedule
Change Be An ADA Accommodation?

Recently, a
leading provider of industrial supplies found out that extended medical leave
may also qualify as a reasonable accommodation. Vallen Distribution, which
formerly did business as Hagemeyer North America, Inc, has agreed to settle a
disability discrimination suit for $75,000 for denying an employee extended
medical leave as an accommodation.

Wesley Smith had
worked for Vallen as a delivery driver for some time when he was unfortunately
diagnosed with prostate cancer in 2015. Mr. Smith did not qualify for FMLA
leave so he requested an accommodation under the ADA for a few weeks off to
undergo surgery and recovery. Now that seems like a pretty reasonable request
doesn’t it? A few weeks off to have cancer
and recover before returning to work. Somehow Vallen didn’t see it
that way and terminated Smith 24 hours before his scheduled surgery. Let me say
that again for the people in the back, Vallen
fired an employee 24 hours before he had cancer surgery.
We have run across
some pretty scummy employers but this one is right up there with the worst of
them! Some boss was probably thinking that they could save on health care
premiums by firing an employee right before the expensive surgery. This is a
special level reserved in hell for idiots like this.

Smith found a qualified employment lawyer and filed suit. Rather than defending
firing a cancer patient’s claim of wrongful termination
in court (I am sure a jury would have loved that) Vallen decided to settle with

Under both the
ADA and Ohio law, medical leave is a widely recognized accommodation. Mr. Smith’s
employer could easily have granted this leave and kept valuable employee. But
there is always going to be a boss, manger, supervisor or even owner that looks
at the bottom-line first or puts his or her potential inconvenience over the
medical needs of their employees. Theses bosses, managers and supervisors
forget that loyalty goes both ways. Thankfully, the law is there to protect
employees and our employment law attorneys are there to remind bad employers.

Thankfully Mr. Smith’s story has a happy ending,
although personally, I think that Vallen got off light. What you should take
away from Mr. Smith’s case is that if you need to take an extended leave to
seek medical treatment for a serious medical condition let your employer know!
They are obligated to engage in an interactive process to discuss what
accommodations would be reasonable in the situation, (See Do I Have A
Disability Discrimination Case?
) and don’t forget, you may also be eligible for protected
leave under the FMLA. If your employer refuses to discuss reasonable
accommodations, or retaliates against you for using, or asking about
accommodations under the ADA, or leave under FMLA you need to call the right attorney to discuss your options!

Employment Discrimination /workplace-discrimination/employment-discrimination/ Wrongful termination /wrongful-termination/

If you have requested an accommodation for your
disability, or medical condition and your employer has denied you, or if you
have requested protected leave under the FMLA and your employer said no you
need to call the right attorney. Having to live with a disability
is difficult enough without worrying about the effect it may have on your job.
If you are disabled or your employer perceives you as being disabled; and you
have been fired, wrongfully
, discriminated
against, demoted, wrongfully disciplined, denied wages, or otherwise retaliated against,
or if you even think that you might need a disability
discrimination lawyer, then call the right
to schedule a
free and confidential consultation.
Call our office at 866-797-6040.


This employment law website is an advertisement. The materials available
at the top of this 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 for surgery?”, “am I
disabled under the ADA?”, “what should I do if I’m fired during sick leave” or
“can my boss fire me for using FMLA”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability
discrimination 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, attorney, Brian Spitz or any individual attorney.

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