Fired for being injured or sick? Employers may be violating your rights under FMLA


Protections granted to employees by the Family Medical Leave Act are important to be aware of. It is difficult enough to keep a job while struggling with an injury or illness. The FMLA can provide protections for those whose health is presenting temporary challenges on the job. The FMLA can provide time away to care for a family member in need of immediate attention. There are many scenarios where this law can be used to bridge the way back to a full-time contribution in the workplace. If you have a re-occurring health condition, and need a period of intense treatment, you are entitled to inquire about sick leave without repercussions to your job status.

Persons employed by companies possessing greater than fifty (50) employees fall under the scope of this law, and should know how to take advantage of it in order to keep their jobs.

A few interesting case histories:


Fired: Injured on the Job

Mark worked in the parts department for Utility Trailers. He fell off a ladder during his shift, re-aggravating a pre-existing back injury. After the fall, Mark was taken almost immediately to the emergency room. Subsequently, Mark’s doctor ordered him to take off work to allow his back time to heal. When Mark delivered his doctor’s restrictions to his supervisor, he asked about his rights under FMLA.  HR told him it wouldn’t be necessary to file a claim, as he was expected to be out “only a few weeks.” When Mark called in about two weeks later to inform his employer that he was ready to return and to get his schedule, he found he’d been replaced.  His employer informed Mark that he could reapply for a position . . . “if one is available.”

Mark never reapplied for a position. Instead, he filed a lawsuit. Although Mark had not officially been on FMLA leave, his employer was found to have been put on notice of his rights under the law. His case survived Summary Judgment, and headed for trial. His case settled just before trial was slated to begin. George v. Utility Trailers of Indianapolis, 1:12-cv-00711-SEB-MJD.


Fired: Caring for Child with Cancer

Suzan worked at Harbor Crest, a residential nursing care facility. One day Lisa informed HR that she needed to take time off to care for her daughter.  Suzan’s daughter was undergoing treatment for thyroid cancer. Suzan was granted FMLA leave after submitting the necessary paperwork. Suzan did not know when her daughter would cease to need her care, so left the return date on the forms blank. While out on leave, Suzan followed the company’s call-in policy to the letter.  She kept her employer informed regularly on her daughter’s progress.

Late in her leave, Suzan informed Harbor Crest that her daughter’s physician believed her daughter would require assistance through at least July 2011. Harbor Crest decided that Suzan would not return to work by the time she’d exhausted her medical leave.  Her employer hired a replacement. When Suzan attempted to return to work,  she was informed that she’d been terminated. This was before her medical leave had been exhausted. Suzan sued Harbor Crest on the grounds that her FMLA rights had been violated.

Harbor Crest fought the lawsuit. Since Suzan had not given a return date on her paperwork, they argued she had forfeited her right to reinstatement under the FMLA. The court disagreed, finding that Harbor Crest had not made much of an effort to obtain any such date in the many communications they had with Suzan during her leave of absence. The court found that instead of firing Suzan on the assumption she would be out past the expiration of her leave, Harbor Crest should have asked her for her plans.  Gienapp v. Harbor Crest, 756 F. 3d 527Court of Appeals, 7th Circuit 2014


Fired: Depression

Lisa worked at Corinthian Colleges, Inc. In early 2008, her supervisor noticed she seemed depressed. She was encouraged to apply for personal leave, and she did so. The same supervisor advised her to apply for short-term disability coverage instead of using up her personal leave. Lisa saw her doctor and received certification of a mental health condition. This made Lisa’s leave eligible to be covered under the Family Medical Leave Act.

On April 1, 2008, Lisa was ready to return to work. Before she could return, she was notified that she was being terminated. The college said it was due to low enrollment and because she had not returned to work within the twelve weeks allotted by FMLA. Lisa sued, claiming she never got the notice of her termination under the FMLA for having extended her leave beyond the 12 weeks allotted.

Lisa’s case is upsetting to employers, because the Court looked to the “mailbox rule” to determine if the letter sent by Corinthian was sufficient to provide Lisa with personal notice. Given her claims that she had not received it, the Court found it was insufficient notice. Lisa thus won her appeal, while sending the message to any employer who wishes to terminate an employee without violating the FMLA, that they may need to send such notices by certified mail or personal delivery, requiring a signed receipt. The Appeal was granted in August of 2014. Lupyan v. Corinthian Colleges Inc., No. 13-1843, 2014 WL 3824309 (3d Cir. Aug. 5, 2014)


Fired: Cluster Headaches

Sam worked for the Connecticut Department of Transportation (ConnDOT). His job required him to work extensive periods of overtime several times a year. Sam suffered from “cluster headaches,” a type similar to a migraine headache, that can last for days. Nothing Sam’s doctor had tried to treat these headaches had yet helped to alleviate the symptoms. Sam’s physician eventually determined that it was the stress caused by periods of extended overtime that was most likely triggering his headaches. Sam’s doctor immediately limited Sam’s work to no more than eight hours per day.  He wrote instructions prohibiting Sam’s employer from making Sam work overtime.

Sam provided his doctor’s restrictions to his employer through proper FMLA procedures.  ConnDOT’s response was to tell Sam that his overtime was an essential function of his job. If Sam could not perform these essential functions, ConnDOT would try to transfer him to another position. If one could not be found, he would be terminated. ConnDOT asked Sam to submit a medical certificate for further FMLA leave. His employer made clear that if the medical certification stated Sam could not work overtime, he would have to resign or seek a disability retirement. Sam filed his certification, which confirmed that he could not work overtime. Sam resigned after ConnDOT could not locate another position. He subsequently filed an FMLA lawsuit.

ConnDOT’s argument was that an employee can take FMLA leave only if he is presently incapacitated because of a serious health condition, not because of something “that may happen in the future.” The Court found that ConnDOT had violated the FMLA, stating that FMLA does not require a complete incapacity to work but rather permits leave to be taken intermittently or on a reduced leave schedule when “medically necessary.” The Court indicated it viewed Sam’s condition more like asthma or any other recurring condition for which the causation can be readily attributed to the job duties by a physician. Santiago v. Connecticut Department of Transportation. et al.; 29 CFR 825.115(f)


(Because you cannot rely on your employer)

The underlying thread throughout these cases is the employers’ resistance to extending Family Leave benefits to employees. This resistance seems to be encountered regardless of the medical scenario that prompted the employee to request leave under the law. Certainly, health issues are inconvenient for all concerned, but the FMLA, and similar laws exist to assist employees whose lives have become complicated by illness.  Employer resistance underscores the need for such laws to protect everyday American workers from being fired only to further the “bottom line.”

An employee checklist for FMLA compliance can be found here.

If you feel your rights have been violated in connection with an FMLA-qualified sick leave, or if you have been recently terminated from a position in which you believe you were protected from action under the FMLA, call Lazear Mack at 510-735-6316, and we will help you determine where you stand.

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA


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2 comments on “Fired for being injured or sick? Employers may be violating your rights under FMLA

  1. November 30, 2015 at 3:19 pm

    On the other hand I was told to resign, can I still be helped

  2. November 30, 2015 at 9:05 pm

    Kendra, it is possible, yes. Can you either call 510-735-6316 or fill out an intake on the website? We’ll be able to tell you more when we know the facts of your case.

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