Am I eligible For FMLA leave?
Best Employment Lawyer Answer: The Family and Medical Leave Act (“FMLA“) entitles eligible employees of covered employers to take unpaid, protected leave for personal or familial serious health issues. To be eligible for FMLA leave, employees must: (1) work for a covered employer, (2) worked at least 1,250 hours in the 12 months prior to the leave (an average of slightly over 24 hours per week), (3) work at a location with at least 50 employees in a 75-mile radius, and (4) worked for the covered employer for 12 months (the 12 months do not need to be consecutive). Usually, a private employer is covered under the FMLA if the company employs 50 or more employees. (Best Law Read: My Job Doesn’t Have FMLA, Can I Get Medical Leave?; Can I Sue for FMLA Interference Before I’m Eligible?).
What protections does the FMLA provide?
Top FMLA Attorney Answer: As our employment attorneys have discussed before, the FMLA is a powerful tool for covered employees who need to use medical leave for their own condition or to care for a sick family member. (Best Law Read: Can I Be Fired For Poor Job Performance After Using FMLA?; How Do I Use FMLA To Care For My Child?). Specifically, an employer must inform an employee about that employee’s FMLA rights and provide leave if the employee is eligible; and once the employee exercising his/her/their rights to take FMLA leave, the employer is legally prohibited from retaliating against that employee. (Best Law Read: What Is The Difference Between FMLA “Interference” And “Retaliation”?; Can Your Employer Limit Your FMLA Leave?; Firing Employee On FMLA Following Miscarriage Is Evil; What Is An FMLA Interference Claim?). If an employer fires an employee for using FMLA, that would be a wrongful termination.
However, there is nothing simple about the FMLA, which is why you should consult an attorney if your employer may be violating any of your FMLA rights. (Best Law Read: Can My Job Conduct Surveillance While I’m Out On FMLA?; Can Employers Force Employees To Take FMLA Leave?; Can Employees Go On Vacation While On FMLA?).
Is there a specific way that I need to request FMLA leave from my employer?
Best Medical Leave From Work Lawyer Answer: While there are no magic words employees must use to request FMLA leave, an employee must provide their employer with appropriate notice. (Best Law Read: Does Asking For Sick Time Trigger My FMLA Rights?). Courts have held that appropriate notice requires providing enough information so that the employer is aware the leave is or should be covered by FMLA. If possible, the FMLA suggests giving the employer notice of a FMLA 30 days in advance of an eligible event as well as complying with the employer’s established procedures.
Importantly, an employer’s stated procedures for receiving FMLA notice may actually be different than the employer’s official procedures for notice. For example, in Roberts v. Gestamp West Virginia, LLC, 45 F.4th 726 (4th Cir. 2022), Kasey Roberts, had an emergency appendectomy in June 2019. While still be treated in the hospital, Roberts sent a Facebook message to his supervisor as notice of Robert’s emergency surgery and the need for medical leave. Roberts and his supervisor communicated back and forth about Roberts’ health through the Facebook messenger app several times during Roberts’ hospitalization and subsequent FMLA eligible medical leave.
Roberts returned to work but at the end of his first week back, he was suffering severe pain. Roberts again notified his supervisor through Facebook messenger about the severe pain and the supervisor approved Roberts to leave work early. The next day, Roberts, again through Facebook messenger, called off work to his supervisor because he was still in severe pain. One day later, Roberts again Facebook messaged his supervisor to report that he was being readmitted to the hospital due to an infection related to the emergency surgery. Roberts’ supervisor did not respond to the message, but the Facebook messenger app showed that the supervisor opened the message. The supervisor reported Roberts’ absences to HR but did not notify HR that Roberts had been readmitted to the hospital.
When Roberts returned to work about two weeks later, he learned that he had been fired for job abandonment the day after he was readmitted to the hospital. Roberts filed a wrongful termination lawsuit against his employer for wrongful termination in violation of the FMLA. The District dismissed Roberts’ case after the employer argued that Roberts had not used the appropriate medical leave call-in line which is the employer’s usual and customary notice procedure for FMLA requests.
Roberts appealed the court’s decision and argued that because all of his FMLA communications with his supervisor had been through Facebook messenger, that was usual and customary for Roberts. The United States Court of Appeals for the Fourth Circuit held than an employer may establish a usual and customary procedure for FMLA notice as a policy. However, the Fourth Circuit Court of Appeals further held that the FMLA regulation concerning notice is more flexible than simply having an official notice policy and that the FMLA’s usual and customary language included any method the employer used informally, or frequently with an individual employee, or regularly accepts for notice, including the methods listed in the employer’s official notice policy. The Court specifically held:
The FMLA regulations do envision that “usual and customary” notice procedures may include absentee call-in lines. See 29 C.F.R. § 825.303(c) (“[A]n employer may require employees to call a designated number or a specific individual to request leave.”). But that’s just one example. Nothing in the regulations’ text limits the reach of “usual and customary” to a company’s written policy. And even if an employer’s written leave policy is prima facie evidence of what’s “usual and customary,” the regulations don’t bar an employee from supplementing that presumption with evidence that the employer also accepts informal absentee notice in practice.
With this view of the regulations, Roberts has raised a genuine factual dispute over whether it was “usual and customary” to report his absences by messaging his supervisor on Facebook. Roberts’s Facebook messages with Slater show that they routinely discussed his appendicitis and resulting hospital stays over that medium. Roberts informed Slater about his surgery and first infection-related hospitalization on Facebook Messenger. Slater responded via the app with follow-up questions about Roberts’s status and expected return dates. Neither Slater nor anyone else at Gestamp disciplined Roberts for using Facebook Messenger over this period or asked that he use the call-in line instead. And Gestamp credited Roberts with FMLA leave on those earlier occasions.
Id. at 735-36. And with that, the dismissal was reversed, and Roberts will get his day in front of the jury (or a settlement).
The takeaway from this case is that wherever possible, notify your employer in the manner required by your employer’s policies or as customarily accepted. Should that now be possible, confirm in writing that you method of notification is acceptable.
What should I do if I was fired after asking HR for FMLA Leave?
Best Employment Lawyer Answer: If you were fired for requesting FMLA leave or retaliated against for taking FMLA leave call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to discuss the specifics of your situation and to see if you have a viable case. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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