Best Ohio FMLA Attorney Answer: Can I be fired while I am taking FMLA? Can my boss tell me when I am allowed to take FMLA leave? What should I do if my employer is interfering with my FMLA rights?
As our FMLA Attorneys have blogged on numerous occasions, it is against the law for an employer to fire an employee because that employee has requested or taken FMLA leave (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? ). This is known as FMLA retaliation. However, this does not mean that being on FMLA gives an employee immunity – an employee who is taking FMLA can still be fired, so long as the FMLA leave is not a consideration or factor in the decision to terminate. However, because employers often try to disguise FMLA retaliation with a supposedly legitimate reason for termination, any employee who has been fired while they were on FMLA, or shortly after taking FMLA, should call the right attorney to determine if they have a case of FMLA retaliation.
Another frequent problem is when an employer interferes with an employee’s right to take FMLA leave. This can occur when an employer denies an employee’s request to take FMLA, fails to offer FMLA when it learns an employee qualifies, or fires an employee because they asked for or attempted to take FMLA. What if your employer approves your FMLA request, but then tries to dictate when you take it? Courts across the country are in disagreement on this issue.
A recent decision out of Texas highlights this disagreement. In Brock-Chapman v. National Care Network, L.L.C., the Dallas Division of the Northern District Court of Texas. There, the employee, Patti Brock-Chapman argued that National Care Network (“NCN”) had not only retaliated against her for taking FMLA by eventually firing her after she took leave to care for her terminally ill husband, but had also interfered with her FMLA rights by trying to force her to take FMLA during one continuous chunk of time, rather than intermittently, as she had requested.
This case demonstrates how cold-hearted some employers can be. Patti had explained to NCN that she wanted to take intermittent FMLA on Mondays and Fridays (following her husband’s chemotherapy sessions) because she wanted to save her FMLA time to spend with him during his last days. But NCN did not care, because allowing Patti to take continuous leave for a period of weeks would be less disruptive to the business than allowing Patti to take intermittent leave. When Patti persisted in her refusal to take continuous FMLA, NCN forced her to take a week of paid time off (at a reduced rate of pay) to “think about” taking continuous FMLA instead of intermittent FMLA. NCN eventually granted Patti’s intermittent FMLA request.
NCN eventually filed for summary judgment on the Patti’s FMLA interference claim, arguing that because it had not denied the employees request, it could not be liable for FMLA interference as a matter of law. And, NCN argued, this argument was supported by legal precedent – courts in the Eighth Circuit had universally held that an employee had to prove “actual denial of leave” to prevail in a claim for FMLA interference.
However, the court did not buy NCN’s argument. The court explained that because it was located under the purview of the Fifth Circuit Court of Appeal, and not the Eighth Circuit, Eighth Circuit precedent was not binding on it. Moreover, as the employee had argued, the court explained that regulations promulgated by the Department of Labor (“DOL“) had no such denial requirement, and that DOL regulations “will be given controlling weight unless [they are] ‘arbitrary, capricious, or manifestly contrary to the statute”. As a result, the court concluded that an employer’s mere discouragement of an employee’s taking intermittent FMLA leave may constitute a denial of FMLA benefits when accompanied by prejudice to the employee. And here, the court found that Patti had been prejudiced because she lost income due to being placed on reduced-pay PTO.
To date, the Sixth Circuit Court of Appeal (which includes Ohio) has not ruled directly on this issue. The Brock-Chapman court does cite to one opinion from the United States District Court for the Northern District of Ohio, Kleinser v. Bay Park Community Hosp., as a decision that supports NCN’s contention that an employer can force an employee to take continuous FMLA leave, but that decision primarily dealt with the issue of whether such forced FMLA can be actionable when the employee is later unable to take FMLA because they were forced to take it earlier. Here, Patti was trying to save as much FMLA as she could in order to maximize the amount of time she could spend with her dying husband in his last days. As a result, it seems likely that if had Patti had been forced to take continuous leave of any duration, she could have argued that she was later denied all the FMLA she needed for this purpose.
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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