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FMLA after Termination Notice

If an employee sustains an injury at work that contributes to her relationship with her new manager “going sideways,” can that employee file for FMLA retroactive to the date of injury after receiving a memo of intent to terminate employment?

The federal Family & Medical Leave Act (FMLA) entitles eligible employees up to 12 weeks of unpaid, job protected leave for certain family and medical reasons, including to care for one’s own serious health condition.

Under the FMLA regulations, both employers and employees have notice requirements.

Employers must notify employees of their eligibility status and rights and responsibilities under the FMLA; and notify employees whether a leave is designated as FMLA leave and the amount of time that will count against their FMLA leave entitlement.

Employers are required to provide a written designation notice to an employee within five business days of having enough information to determine whether the leave is FMLA-qualifying.

Employees are expected to provide at least 30 days advanced notice when the need for leave is foreseeable such as for a scheduled surgery.  When extenuating circumstances exist, like emergency medical treatment the employee must provide notice as soon as possible and practical. If the employee does not give timely notice of unforeseeable leave and does not have a reasonable excuse, the employer may delay or deny the FMLA leave.

Since the employee was injured at work then workers’ comp applies. FMLA leave and workers’ comp leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury.

Unfortunately there is no clear answer to your question because there are several factors to be considered.

Most importantly, why was the employee terminated? You state it was due to her relationship with her manager but what is the specific reason? Terminating an employee for filing a workers’ comp claim or asserting her FMLA rights is illegal.

How long after the injury/FMLA qualifying event was the employee terminated?

Let’s say the employee was injured back in July but has been working ever since. She’s been recently terminated for performance issues and is now claiming she should’ve been on leave this whole time and needs FMLA leave retroactively to her injury date. In this case, the employer would be within legal boundaries to uphold the termination (assuming the termination wasn’t based on illegal criteria).

Now, let’s say the reason for the termination is related to the injury/FMLA qualifying event. For example, the employee was injured two weeks ago. She informed her manager that she needed time off to recover but her manager insisted she return to work. The manager didn’t properly designate the time as FMLA so the employee was terminated for not showing to work. In this case, the employee’s termination should be rescinded and FMLA should be designated retroactively.

Another point to consider is the whether the employee would’ve even qualified for FMLA for the injury. Obviously, this depends on the nature of the injury.


This entry was posted on Wednesday, September 21st, 2016 at 6:55 pm and is filed under
Labor Laws, Termination.
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