A Family Medical Leave Act question for the legal minded

Discussion in 'Fibromyalgia Main Forum' started by Malcolm82, Aug 6, 2008.

  1. Malcolm82

    Malcolm82 New Member

    In my termination letter from my job, the stated reason for terminating my health insurance and employment is "during your extended absence you have exhausted your 12 weeks of FMLA leave and all vacation/personal time."

    I think that legally this 12 weeks of FMLA leave is the only time period a disabled employee's job would be obviously protected while they are on disability leave as I was.

    I have found on the internet that the FMLA requires an employer to notify the employee, in writing, when their FMLA leave officially starts, and only then does the clock start counting down the 12 weeks.

    I never received any notification from my employer about my FMLA leave starting. I hadn't even thought if it until I read it in my termination letter.

    If this is true, wouldn't I still be entitled to the 12 weeks of health coverage and employment protection since, the way I am interpreting this, my absence up to now was not covered under the FMLA, which is guaranteed to the employee by Federal law, because I was never notified by my employer that it had officially started?

    I hope someone out there can answer this question.

  2. terrimaguire

    terrimaguire New Member


    I teach an application that automatically figures FMLA, so I am vaguely familiar with this law.

    According to the law, you are required to notify the company at least 30 days in advance of your intention to take FMLA. If you did not do this, and simply went on leave, there could be a problem in you getting an additional 12 weeks from them.

    If I were you, I would consult a lawyer who specializes in human resource law.

    Good luck!

  3. Malcolm82

    Malcolm82 New Member

    I didn't even know I was going to have to go on disability leave until I got so sick I could no longer work, and I wasn't even thinking about FMLA and my employer never mentioned it until my termination letter.

    Oh well, thanks anyway.
  4. lillieblake

    lillieblake New Member

    I took family medical leave at 2 in the afternoon when I couldn't work anymore. I didn't give them any notice.

    I'd write the hr dept and ask for copies of your entire file.

    Don't ask for just one particular sheet of paper because they might realize they goofed.

    then just point out their error.

    However, if you took 12 weeks and had coverage, then i think they would say that was all.

    But in some businesses you are entitled to personal leave at 80% of your pay after the FMLA ends.

    Good luck. Lillie
  5. msnova74

    msnova74 New Member


    I have been on FMLA since 2000. Your employer MUST notify you in writing when they begin counting time off as FMLA. They have to do this in "a resonable amount of time." If your employer did not do this, you can contact the EEOC and file a complaint against them. OR you can hire an attorney. I do not think that this makes you automatically entitled to receive your insurance and such, but many companies will meet those kinds of demands rather that deal with a fine and violation.

  6. Lichu3

    Lichu3 New Member

    law. Many have free initial consults and may be able to answer some of your questions. Some lawyers also work on contingency........i.e. no payment unless you win....and will evaluate your case to get an idea of how good your chances are of winning.
  7. simka

    simka New Member

    If there is a bar association in your area, they may have a lawyer referral service, I have seen locally where they offer a free initial consultation. If you can, get a copy of your file and any correspondence and employment manual, etc. before hand if you can, but don't wait too long to talk to an attorney.

    Short term disability coverage through your employer could affect the outcome. It's possible that could count in some way regarding FMLA. Also be sure to check if there's something in the employment manual about FMLA.

    On insurance, after termination, the employer doesn't have to pay for insurance, but generally needs to provide you with COBRA coverage, where you are entitled to continue coverage for a period of time, but at your own cost.

    I haven't used FMLA but did use COBRA, and I know there are time limits when you have to elect to continue your coverage, which can be very important when you are ill / disabled.
  8. colorfulcolorado

    colorfulcolorado New Member

    I got nothing in writing either. Then this year I was told I don't qualify because I missed it by 22 hours in which the company I work for cut my hours to make sure I wouldn't get the 1250 needed to qualify. We probably work for the same company! Then this year they already told me I wouldn't get it for next year because of the hours they cut already on me.So in the mean time I'm looking for insurance on my own and an attorney but everyone seems to be on vacation. Sorry but we all need a great attorney and something really needs to be done. ON top of that MY store manager already signed a form and so did the doctor and I was approved and they took it away. But no I never did receive any papers to let me know when anything started. Good luck!
    [This Message was Edited on 08/06/2008]
  9. jmq

    jmq New Member

    I do not have the legal answer for you...but I can tell you how it worked in my office. ( a law firm btw )

    I was told by a caring supervisor that I should apply for FMLA since I was using so much of my sick and annual time up from being sick. I had to take the FMLA form that my human resource office gave me to the doctors office and he had to fill it out and sign it.

    Then when I used it up....the next year, I had to ask for it again...with a new form filled out by the doctor again.

    My office never really kept me up to date on how many days I had left...I made sure to track it...but they did put it all in a memo to formalize when I started it.

    Finally it came to a point that I could not even make it to work at all...fml days or not...I had to retire.

    I would get your answer from a lawyer.


  10. Janalynn

    Janalynn New Member

    There is a ton of info on FMLA on the internet. To the poster who stated you had to give 30 days notice, that is incorrect. There are many circumstances where that would not be possible - birth of a premature baby, death of a family member etc.
    Some of the info below may not be relevant to your actual questions.
    What kind of notice did you give? I'm confused on that part.

    (d) The determinations of whether an employee has worked for the
    employer for at least 1,250 hours in the past 12 months and has been
    employed by the employer for a total of at least 12 months must be made
    as of the date leave commences. If an employee notifies the employer of
    need for FMLA leave before the employee meets these eligibility
    criteria, the employer must either confirm the employee's eligibility
    based upon a projection that the employee will be eligible on the date
    leave would commence or must advise the employee when the eligibility
    requirement is met. If the employer confirms eligibility at the time the
    notice for leave is received, the employer may not subsequently
    challenge the employee's eligibility. In the latter case, if the
    employer does not advise the employee whether the employee is eligible
    as soon as practicable (i.e., two business days absent extenuating
    circumstances) after the date employee eligibility is determined, the
    employee will have satisfied the notice requirements and the notice of
    leave is considered current and outstanding until the employer does
    advise. If the employer fails to advise the employee whether the
    employee is eligible prior to the date the requested leave is to
    commence, the employee will be deemed eligible. The employer may not,
    then, deny the leave. Where the employee does not give notice of the
    need for leave more than two business days prior to commencing leave,
    the employee will be deemed to be eligible if
    the employer fails to advise the employee that the employee is not
    eligible within two business days of receiving the employee's notice.
    (e) The period prior to the FMLA's effective date must be considered
    in determining employee's eligibility.
    (f) Whether 50 employees are employed within 75 miles to ascertain
    an employee's eligibility for FMLA benefits is determined when the
    employee gives notice of the need for leave. Whether the leave is to be
    taken at one time or on an intermittent or reduced leave schedule basis,
    once an employee is determined eligible in response to that notice of
    the need for leave, the employee's eligibility is not affected by any
    subsequent change in the number of employees employed at or within 75
    miles of the employee's worksite, for that specific notice of the need
    for leave. Similarly, an employer may not terminate employee leave that
    has already started if the employee-count drops below 50. For example,
    if an employer employs 60 employees in August, but expects that the
    number of employees will drop to 40 in December, the employer must grant
    FMLA benefits to an otherwise eligible employee who gives notice of the
    need for leave in August for a period of leave to begin in December.
  11. charming

    charming New Member

    I gave the dept of corporate health my aplication filed out by my doctor a month in advance before my surgery,and my nurse manager had to sign it then it was approved I got a letter in the mail reporting my beginnig date when the fmla starts and the date when it ends ,its on my doctor to say if i need more time then human resource will do all the paper work to get corporate health and my nurse manager to approve the extension.they approved it.I could not return back to work with out a approval from my doctor reporting my limittations on my work duty light lifting or no heavy lifting for so many days.I did the same when I had to have my second surgery.

    [This Message was Edited on 08/06/2008]
  12. Malcolm82

    Malcolm82 New Member

    The circumstances that caused me to start my disability leave were that I had collapsed in my office 3 times during what turned out to be my last week of work, once while talking to a customer on the phone, and had to be driven home by one of my employees each time (extremely embarrassing). I kept trying to come back each day but that kept happening. My wife had to drive me to work that last week because I had almost gotten in an accident when I pulled out in front of an oncoming car at an intersection on the way home from work the previous Friday because I was so out of it. Luckily he swerved to avoid me. He even stopped and asked me if I was alright. He could easily tell something was wrong. I just told him I had a terrific headache and I was sorry. It was then I realized I was a menace on the road, and even my doctor restricted me from driving after that. I haven't driven since. That was nearly a year ago.

    One of the owners of the company called me at home in the evening on that last day that I worked to convince me to stay home to recover at least until the following Wednesday. I reluctantly agreed. I've never been the type to "give up", but I knew he was right.

    I had not gotten any better by the following Wednesday, in fact I was much weaker and just could not stay awake. I barely managed to call the general manager to tell him I was actually getting worse, and realistically I should take a short term disability leave until I was healed, and that I had talked to my doctor about it and he agreed. He said he would send me the short term disability insurance claim forms to fill out. I remember that call very well because I couldn't get out of bed and could hardly talk. (anybody else have trouble talking on the phone? It is extremely difficult.)

    That was all that was discussed. There was no mention of FMLA leave by either one of us, and I hadn't even thought about it.

    The first I heard about having used it up was in my termination letter. I had not received any sort of letter confirming I was even on it.
  13. dc1980

    dc1980 New Member

    I went back and read thru your post and found where you said,

    "I have found that it is definitely not legal to terminate an employee due to being on disability.
    The way they got around that was by stating in the letter that it was due to my "extended absence". No mention of disability leave was made. Firing a person due to an extended absence
    is perfectly legal. I think the reason they did it with a letter is to make sure disability as a reason for termination wasn't accidentally mentioned by them in a conversation with me, because if it was and I had recorded the conversation (which is legal to do in New York State), then I would have grounds for legal repercussion."

    I live in TN, once a person go on STD for any reason for 30 days or more, if applicable, FMLA will run concurrently. This info can be found in your employee handbook and if it is in your employee handbook, they do not have to send you a letter. So check out your employee handbook.

    I was fired due to the exact same reasons; I was still on medical leave and still giving my employer letters from my PCP stating I was not to return to work. As soon as they fired me, I went right away and filed for unemployment benefits - mind you I had to answer every question truthfully - and when it ask could I work - I had to answer NO. That brought up a big flag and the unemployment office contacted both the company I worked for and myself.

    I received a letter back from the TN Dept of Labor and Workforce Development Division of Employment Security stating, " Claimant was forced to leave most recent employment due to an illness or injury which was not job related. Claim is denied because claimant failed to report back to her employer to perform her usual job duties. There is no evidence the claimant has been cleared to return to work by her doctor.

    Under TCA 50-7-303, A claimant must present medical proof if forced to leave due to illness/injury, notify the employer as soon as reasonable practical to do so, and return to that employer and offer to work as soon as able to perform claimant's former duties."

    I gave my employer a letter each and every month stating from my PCP that I was unable to work and on each statement there was a no return to work date because my PCP could not provide a return to work date as I was and am disabled. My employer totally lied to the Unemployment office and said I had failed to report back to the company and to perform my usual job duties. However, Thankfully I keep copies of everything and turned all my medical leave notes over to the unemployment office and that’s why the unemployment office wrote. "There is no evidence the claimant has been cleared to return to work by her doctor." They actually called me and told me they were writing that in on purpose because it was their opinion I was fired illegally since I sent them all the faxes from my PCP to my employer stating I could not work.

    Then I contacted the ERISA and the EEOC. You only have a certain amount of time to contact each of the agencies, so do so as soon as possible. I just called and ask questions and got the ball rolling from there. I was denied because I was passed the 180-day point of reporting incidents.

    What really makes me so MAD is that I paid out of my pocket for my LTD insurance the entire time I worked for that company and when it came down to it, they fired me during my last 2 weeks on STD. I do have an attorney fighting for both my LTD and SSDI.

    I wish you all the best of luck!!!
  14. Malcolm82

    Malcolm82 New Member

    I just talked to a labor law attorney's office and they charge $315 for the initial consultation just to see if I have a case and $315/hr after that.

    I don't think it is worth it to go this route. The cost, time, and trouble wouldn't be worth it. I'm just about played out right now from this little bit-it is NOT helping my health.

    I may just report them to the EEOC or the department of labor. At least that won't cost me anything.