Q&A With Mark Carey: Family Medical Leave Act Questions From Listners

Hey, it's mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you as always, what your employer does definitely not want you to know about a lot more. Hey, it's mark here, and part of our ongoing question and answer format on this podcast will address today the feminine tickle effect. These questions are raised by our listeners. And I'll try to provide the triage of what I believe may happen in the case. So the first one goes like this, the employee has an ongoing conflict with the supervisor about her use of intermittent FMLA leave. And we think that the claim is potential interference retaliation. So let me interpret. Without any more facts, we can at least tell from the circumstances of the individual situation, that they might be getting a little pressure from their employer, if you're having a conflict of your supervisor about use of FMLA, typically, we know that that is a signal that the employer is targeting you for potential termination, because you have to understand the basics of a bias regarding FMLA. That is, if you leave, they gotta replace you with somebody else, and I cost the employer money. And it happens at large and smaller, mid sized companies, it's just really a financial motive. And for some reason, I don't know why employers pressure employees about the request for FMLA leave, in hopes that they either don't take it or if they take it, they terminate them when they come back, maybe about a month and a half after they come back. So I'm going to tell you a little inside scoop have a law and here's how I see it. And this is something you're not gonna really read about. When you take an FMLA leave, you really have to be sure about what's happening here in your employment situation, because the employers will use an FMLA leave request as a means to basically set you up for a firing. Now, they'll let you back in the door, sometimes not always. But they'll see they'll try to pressure you to come back to work sooner than you're ready to do. So that's usually a telltale sign that I usually look for when I'm looking at an FMLA case. In this situation where we're looking at an interference aspect FMLA law, both state and federal prevents an employer from interfering with your ability to take a leave. Now, you can take a leave for FMLA for a medical condition, you have to provide a medical note, of course, but it's all it says is that serious medical condition doesn't have to be anything above that it's a pretty low standard. So getting a letter from your doctor can do that from your therapist, whatever they need time off, and also check how much time you're available to get off. And also check with your state, certain states have paid family medical leave where the employer is responsible to pay for it. So checking on those issues. Retaliation is a different component of the law. It's basically says it says that you can't retaliate against an employee for taking an FMLA leave in you have to potentially document that best to document via emails with your employer use email timestamp to do so. But you'll know you're dealing with a retaliation claim when you're you're just getting the flack from your employer after taking leave. So let's move on the next one. Again, these are all real life situations. I'm just reading from the from the intake that comes into our office periodically. Here's another one. This one's a car dealership. And the person went out on medical leave for his own serious medical condition. And for about two months, and then tried to return was told he's not in their system and no longer was no, that's really odd. He tried to tell me whether they have terminated him or and what the reason is. So this fact pattern I'll interpret for you is the employer is not doing a really good job here to monitor and you know, they're part of the bargain here of FMLA leave. When an employee goes out on leave, you're not you're not leaving permanently you're you're still on the payroll system, you just having a medical leave of absence. And the employer is required to keep your job open for a set number of weeks and law in Connecticut where we are at it's got to keep it open for 16 weeks under federal law. It's 12 weeks, you get a little more time here in Connecticut to protect your job. So when this individual as in fact patterns, he goes out on for two months. That's only what eight weeks, he's got more time. So the employer is has faced with a liability here to get sued for wrongful termination. If they don't allow them back. So little segment here. We don't know the full extent of what happened to him but I'm just interpreting the fact pattern for you to kind of hit the issues and see when you see this happening to yourself you know what to look for. What to do. So this situation is a potential termination. If it's not termination, then you know, the other avenue for the employee. Of course, the solution is to really to send an email to HR saying, I'm coming back to work giving notice, and I'm gonna give you a little trick here, you always want to come back to work on FMLA, leave one, two weeks prior to the end of the leave period. That way prevents the employer from, you know, saying that you stayed out too long, you never want to do that. So always want to come back a little bit for beforehand. And if they say to you, that resist you coming back to work, you know, you have a problem with your employer, and you might want to contact an employment lawyer at that point in time. So you have a right to come back to work inside of the leave period. Let's move on the next type of example for you. So here, we have a customer service employee at a major public company, been there for six years, the employee took an FMLA leave for back surgery, it's very common issue that we see. He's supposed to get 60% of the income replacement from the employer. And the employer kept losing the paperwork. And that's not good. And then the the person also notes that hasn't got any money yet, and when to leave in June. So let me interpret what's happened in that fact pattern. The percentage of income aspect me would go there first, when you're taking FMLA leave, oftentimes, the states have paid medical leave, and it coincides also with whether it's paid or not paid in the state. It coincides with what's called short term disability. And the 60% tells me that that's the short term disability income replacement benefit you received. When you tell your employer you're gonna go out on now leave of absence for back surgery, you're not really have to use magic words, just tell your employer HR that you have to do that. And then you're entitled to get the protected job status of the FMLA leave, and they have to put it in writing to you and you have to make sure you put it right into them and fill out whatever forms they have. And then you have also inquire about the short term disability income because you're going to need income. Under federal law, you don't get until they pass Congress passes a law, you don't get paid during your leave of absence. But employers obviously want to try to take care of the employees provide a disability benefit. And that's where you get this short term six month disability benefit pays out anywhere from 6% of your income. Sometimes employers pay out 100% of income. And obviously, when you come back, things go back to normal. And when you when you go back to your active employment. In this fact pattern, we hear that the employer keeps losing the paperwork. That's not cool, folks, that's a major public company, customer service rep. You know, HR departments are, you know, super efficient, they, you know, teams of people working in HR, you don't lose your paperwork, you really wouldn't encounter that problem. And if it happened here, and the person has gotten their money yet, somebody's kind of, you know, screwing around the system there. Because you are sometimes dealing with either an outside third party insurer who's going to pay the short term disability benefit. Sometimes employers self pay it self insured, they call that and so you get your your money that way. But nonetheless, you're gonna get your money because you can't go without a paycheck. So if that's happening to you run and talk to an employment lawyer right away. Let's move on the next category. Little more complicated here, we're going to deal with a nurse, a well paid nurse for that matter. And I'm going to be selective about my reporting effects. And this person is working for the employer for about 15 years. And they were terminated. And they were terminated for the reason of a violation of the substance abuse policy. But they were terminated while they're on federal clinical leave, we don't know why the person was put on him and medical leave maybe anxiety, or maybe I'll give it this. They went when they were going to ongoing treatment for their substance abuse called alcohol or whatever it is, you need to know that when you're under treatment for I'll use alcohol because it's easy. When you're under treatment of a medical provider, and you're also attending ATA, you are protected as a person with a disability. But if you're not in treatment, and you know not in treatment under treatment of a care of a Physician or Therapist, you are not protected under the federal aid agency. I'm sorry, disability, the ADEA been talking too long today. Sorry, the and you're not you're not a disability. So if you aren't sure, but you do have a disability. So in our fact pattern here, the person was fired while on the leave of absence. And there's another issue about in the fact pattern having to do with getting the toxicology report as part of the medical record. That is a personnel file issue that they're entitled to that you get into a HIPAA issue, but I don't want to get too far into the fact and other than mentioning that, when you're fired while on FMLA, that's a serious issue that you need to really consider talking to an employment lawyer because employers are required to keep your job open. But if the issue here is the balancing of interests between the employer terminating an employee for substance abuse problem, but if they're on FMLA, you can't fire them until they come off the FMLA. So this employer fire them, and it was a actually a pretty well known hospital, let's put it that way, in a major metropolitan city. And the, you wouldn't find that fact pattern normally, but it happened. And I'm taking these, these these pitches so so it's because random, I collected them from our intake this morning. So this fact pattern is an example where the employer is behaving badly and firing the employee, while on leave, the employer is probably gonna take a defense here that they have a rifle reason they violate a substance abuse policy of the company. But the plaintiff side of this situation is to challenge it by saying not filing a lawsuit, folks, we're just going to file a letter demand to the employer to negotiate something of an exit package. But we're gonna say that the employer discriminated against employee for having a disability because they're in treatment, and also that they retaliated against them for taking an accommodation because taking FMLA is also an accommodation request under the Americans Disabilities Act. So you have a wrongful termination for FMLA. You have a wrongful termination under state and federal law for disability discrimination, and then you have potential, if the fact pattern showed us a retaliation claim, it's probably hidden in there, and the employer is probably gonna lose. So in summary, in that little more in depth fact pattern, you have the issue with the employer, firing somebody while on leave, can't do that, and also firing the employee for having a disability. Alright, so that's something you can you wrestle with, but if it's happening to you, that's illegal, you can't do that. Let's look at the next one a little more complicated as well, this one's going to throw in a pip angle for you. The employee was employed as an account except earning 90 to$100,000 a year, I was put on a pip, which is usually pretty fashionable things these days, if you're hearing about pips, they are flying at us. In terms of calls we get, we get a lot of money, I did look at the several 100 contracts we've had in the PIP is happening, it's being called to our to our attention quite often in terms of the intake. And this fact pattern, we have somebody's put on a pip, and the person feels that we're retaliated against for asking about FMLA. And here's an example where the employer said, it's not a good idea to take an FMLA. And they were kind of discouraging here. So there isn't what's called an interference, you can't discourage an employee from taking a leave, either, you can just take a leave and take it. But don't try to discourage that. Because that can be called an interference claim. And if you're fired after that, and the lawyers like myself, like Vic finds that out, I would say that's an interference claim, and the employer reliable. I mean, it's pretty black and white terms, and how I see it. Let's see the next part of the fact that it goes into the aspect that she confided in her managers that she's been seeing a therapist, and that's the reason why she went to go from LA that makes sense. She has anxiety and probably depression. But she's told her employer about it. And then she says her employer manager has it out against her. So that's an example you need to understand that when you tell your manager you have anxiety disorder, a, you know, anxiety is a a mental nervous disability, and you put your employer on notice, you actually are building a case, whether you knew it or not, for a potential severance negotiation for wrongful termination and violation FMLA in this case, interference. So that's a pretty common experience that I see, especially with anxiety disorders. So I want to bring that to your attention. So periodically, I'll be doing this question answer format. And hopefully you find that very interesting. And you can see a lot of these now coming out because I have a lot of information about client examples are not clients, but just examples, people call in to us. And so hopefully you found this informative about FMLA. And I'll continue to create these little vignette scenarios so you can see if you relate to them and if it helps you understand what you're doing with respect to your job, what you're encountering, okay? Take care. If you'd like the employees to have a guide, I really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely that you can actually use and solve problems on your own and at your employment. So if you like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not Osgoode right. I'll keep it up. I'll keep the standards up. I'll keep the information flowing out you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to M carey at capclaw.com That's capclaw.com