Best Ohio Coronavirus Employment Law Attorneys and Top FMLA Lawyers Answer: Do I have a wrongful termination claim if my employer fired me to prevent me from taking paid leave under the Families First Coronavirus Response Act during the COVID-19 pandemic? Can my employer fire me for asking about FMLA? Can I be fired for scheduling FMLA leave before I am eligible for an upcoming medical procedure that will occur after I become eligible? Can my job fire me before I use FMLA for the birth of my child?
No doubt about it, life can come at you fast. Sometimes you don’t even see it coming. On the other hand, sometimes there are events on the horizon that you know are coming and can plan for. Fortunately, the Family and Medical Leave Act (“FMLA”) covers both situations. The FMLA covers both emergency leave, say if an employee was hospitalized after a car accident, and planned leave, in the case of an upcoming surgery. If the covered employee knows that they will need FMLA leave in the future, they are required to give their employer notice. Prior to taking leave, an employee must give her employer notice of the request for leave, “stat[ing] a qualifying reason for the needed leave.”
Given the developing situation with COVID-19, there have been a few amendments to the FMLA and who qualifies for protected leave. Specifically, the Families First Coronavirus Response Act (“FFCRA”) was passed in mid-March and became effective on April 1, 2020. Our employment law attorneys previously addressed employees’ rights under different circumstances to take leave and how much workers with get paid under the FFCRA, which is set to expire on December 31, 2020. (See Law: What Is The Family First Coronavirus Response Act?, and Laid Off Because Of Coronavirus? Here Are Your Options; FMLA & Coronavirus: Who Can I Miss Work To Care For?, and Employment Law: Legislative COVID-19 Response.)
Today, our employment lawyers are tacking the potential of wrongful termination claims arising out the FFCRA. Because the FFCRA amends the FMLA, which is essentially used as a springboard, the FMLA’s provisions that make it unlawful for employers to interfere with an employee’s ability to take protected leave and illegal for employers to retaliate against workers who have taken the leave apply to the FFCRA.
In the midst of the Coronavirus/COVID-19 pandemic, our lawyers are fielding a lot of calls – yes we are still here working very hard for our clients – where employers fired, furloughed, or laid off employees either before the effective date of the FFCRA or shortly after because those workers were more likely to need the legally protected leave – parents of young children; pregnant, disabled or immune compromised employees, etc. Under these circumstances, many fired employees are asking, “can I sue for wrongful termination if I was fired before I ask or was qualified for FMLA or FFCRA leave?”
First, given that the FFCRA is only about a few months old, there is no precedent and no definitive answers. We have seen other employment lawyers express doubts about such claims, but the employees’ attorneys at Spitz, The Employee’s Law Firm are some of the most aggressive lawyers in the land. Our attorneys look for ways to fight for wrongfully fired employees. And, our lawyers think that we have a good reason to take and fight for these claims (on a no recovery, no fee basis too!).
Let’s take a step back to the basics. As our employment lawyers have blogged before, the FMLA is a federal law that lets covered employees take extended time away from work, to handle particular family or medical needs. The FMLA makes it illegal for an employer to terminate, demote, harass, or otherwise discriminate against an employee based on their use, or potential use of FMLA. Putting aside the FFCRA for a moment, what about those employees who have not yet worked for a company for 12 months but have an upcoming medical procedure for which they wish to take time off. This usually occurs when an employee is pregnant. For example, an expecting mother has been working with a company for nine months, and she is due to give birth in four months. Can the expecting mother get the ball rolling, and ask for FMLA paperwork before she is eligible so that when the time comes to give birth, she does not have to go through the hassle of applying for FMLA leave? Yes! Can her employer fire her for doing so? No!
The United States Court of Appeals for the Sixth Circuit held in Davis v. Mich. Bell Tel. Co,the determination for FMLA eligibility “must be made as of the date leave commences.” This holding is very key – remember it. As such, courts look to see if the employee would have been eligible for FMLA on the day the leave was supposed to start, not the day the employee requested the leave. Therefore, employees who apply for FMLA for a time period when they would become eligible, are protected from retaliation from their employers.
Indeed, the United States Court of Appeals for the Eleventh Circuit explained, in Pereda v. Brookdale Sr. Living Cmtys., Inc., that the clear intention of the FMLA is to protect employees who request FMLA in advance of being eligible. In Pereda the Eleventh Circuit held:
We hold that because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child. The FMLA mandates that, “In any case in which There exists a dearth of opinions from circuit courts on the precise issue we are dealing with here. Consequently, we are setting forth excerpts from some district court opinions that, although not precedential, are illuminating and persuasive. the necessity for leave . . . is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave . . . .” 29 U.S.C. § 2612(e)(1). The notice period was meant as protection for employers to provide them with sufficient notice of extended absences. “It would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to retaliation, or interference, for which they have no remedy.” Reynolds v. Inter-Indus. Conf. On Auto Collision Repair, 594 F. Supp. 2d 925,928 (N.D. Ill. 2009).
Without remedy, the advanced notice requirement would become a trap for newer employees and extends to employers a significant exemption from liability. Beffert v. Pa. Dep’t. Of Pub. Welfare, No. Civ. A. 05-43, 2005 WL 906362, at *3 (E.D. Pa., April 18, 2005). Such an interpretation is inconsistent with FMLA and the purpose of the Act. If we were to hold that Pereda had no cause of action for interference because she had not yet been employed the full 1,250 hours during a 12-month period, or given birth to her child, than she should not be required to give her employer any advance notice of impending leave. As the statute requires advance notice, logic mandates that FMLA be read to allow a cause of action for employees who, like Pereda, in goodwill exceed the notice requirement.
Recently, the United States District Court for the Western District of Kentucky, a court in the Sixth Circuit, cited the Eleventh Circuits holding in Pereda in Cross v. Dental Assisting Academy of Louisville, LLC.In Cross, the District Court acknowledged that “the Pereda Court adopted the same rationale as the Sixth Circuit in its line of cases adopting 29 C.F.R. §825.110(d). Namely, that the FMLA should not be interpreted to disincentivize employees from taking the protected leave that the Act creates.”
It is important to note that pregnant employees have other statutory protections in addition to the FMLA. (See Employment Law: What Is Light Duty Pregnancy?, My Job Discriminates Against Black Pregnant Women!, and What Can I Do If I Was Fired Today For Being Pregnant? I Need The Best Pregnancy Discrimination Attorney And Top FMLA Lawyer In Ohio!)
Disabled employees also have additional protections. (See My Job Doesn’t Have FMLA, Can I Get Medical Leave?, My Job Won’t Let Me Back From Medical Leave. Help!, and, Can My Boss Fire Me Because of My Medical Condition? I Need The Best Disability Employment Discrimination Attorney In Ohio!)
Further, while it is often pregnant employees who request FMLA leave before they are eligible, all employees enjoy these protections. So, if you have an upcoming surgery or medical operation and your employer retaliates against you for requesting FMLA leave in advance, you have a claim and need to call the right attorney.
Now, let’s circle back to our questions about the FFCRA. Let’s say an employee tells his boss, manager or even the owner of the company in late March that he is worried about Coronavirus having closed his kids preschool and having no childcare. The boss, thinking that he is brilliant, fires our hard-working employee on March 31, 2019 – one day before the FFCRA becomes effective. Now, remember the United States Court of Appeals for the Sixth Circuit’s holding in Davis – the determination for FMLA eligibility “must be made as of the date leave commences.” Thus, our attorneys believe that firing an employee before FFCRA became effective (but while the FMLA was in place) does not preclude a claim for FMLA/FFCRA interference. Instead, our lawyers firmly believe that the FFCRA set a date when employees would be eligible – thus, no FFCRA permitted leaves could happen before April 1, 2020, but it did not create the trap of letting employers fire employees who would need to use it before April 1. So, our attorneys strongly believe that a wrongful termination claim should be brought in cases like this.
Let’s look at another hypothetical, a worker tells her boss that her wife is a doctor in the ER (yes we are using LGBTQ+ friendly examples) and that she has be exposed to the Coronavirus, but does not specifically ask for leave under the FFCRA or FMLA. As our lawyers have blogged about before, the FMLA places the legal obligation on employers obligated to offer employees the opportunity to take FMLA leave when they receive sufficient information that puts them on notice that the employee needs to take leave. (See Can I Be Fired If I Just Ask For Sick Time, But Am Eligible For FMLA? I Need A Lawyer!) The employee does not need to use “magic words,” and the company you work for cannot fire you just because you did not specifically request FMLA or FFCRA leave.
Let’s take a look at a case that addressed this issue under the FMLA. In O’Hara v. Mt. Vernon Bd. of Educ., Melanie A. O’Hara, a school teacher, requested sick leave for pregnancy and parental leave. While there was a dispute of fact as to whether O’Hara’s request actually used the term “FMLA,” the United States District Court, S.D. Ohio, Eastern Division concluded that it was irrelevant:
“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 have used protected leave under the FMLA, or the expanded protections under the FFCRA, or had asked to use FMLA leave, and you have been fired, wrongfully terminated, discriminated against, demoted, unfairly disciplined, denied wages, or even think that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employee’s rights under the Family Medical Leave Act and Families First Coronavirus Response Act.
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