Employee Survival Guide® - Q&A With Mark Carey: Family Medical Leave Act Questions From Listners

Episode Date: December 19, 2022

In this episode of the Employee Survival Guide, Mark answers questions from listeners regarding the Family Medical Leave Act (FMLA).  Mark will provide a factual example based on an employee's real life circumstance and he will interpret the potential play by play about what can happen in the case.  These are short fact examples intended to help you familiarize yourself with various aspects of the FMLA so you can spot the issue that may be happening to and how to deal with it.  This is the stuff your employer really does not want you to know about and more.  If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

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, and a lot more. Hey, it's Mark here, and part of our ongoing question and answer format on this podcast we'll address today today the Feminical Leave Act. 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 or 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. getting a little pressure from their employer. If you're having a conflict with your supervisor about use of FMLA, typically we know that that is a signal that the employer is targeting you for, you know, potential termination because you have to understand the basics of the bias regarding FMLA. That is, if you leave, they got to replace you with somebody else and that costs the employer

money. And it happens at large and smaller and 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 an 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 of how the law in terms of how I see it. And this is something you're not going to really read about. When you take an FMLA leave, you really have to be sure about what's happening 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, but not always, but 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. sign that I usually look for when I'm looking at an FMLA case. In this situation, 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 all it says is a serious medical condition. It 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 check in on those issues. Retaliation is a different component of the law.

It basically says that you can't retaliate against an employee for taking an FMLA leave. And you have to potentially document that, best to document via emails with your employer, use the email timestamp to do so. But you'll know you're dealing with a retaliation claim when you're just getting the flack from your employer after taking a leave. So let's move on to the next one. Again, these are all real life situations. I'm just reading from the intake that comes into our office periodically. Here's another one. This one's a car dealership. And the person went on on medical leave for his own serious medical condition for about two months and then tried to return, was told he's not in their system any longer.

Well, that's really odd. He's trying to determine whether they have terminated him 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 they're part of the bargain here of FMLA leave. When an employee goes out on leave, you're not leaving permanently. You're still in the payroll system. You're just having a medical leave of absence. And the employer is required to keep your job open for a set number of weeks under the law. In Connecticut where we are at,

you 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 has an fact pattern, goes out for two months, that's only what? Eight weeks. He's got more time. So the employer has faced a liability here to get sued for wrongful termination if they don't allow him 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 say when you see this happening to yourself, you know what to look for or 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, give me notice. And I'm going to 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 prevents the employer from saying that you stayed out too long. You never want to do that. So always want to come back a little bit 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 to the next type of example for you.

So here we have a customer service employee at a major public company. I've been there for six years. The employee took an FMLA leave for a back surgery, a very common issue that we see. You're 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 person also notes that hasn't got any money yet and went on leave in about June. So let me interpret what's happened in that fact pattern. The percentage of income aspect, let me 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 going to go out on a leave of absence for back surgery, you're – you don't 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 in writing to them and fill out whatever forms they have. And then you have also inquire about the short- writing to 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 their employees and provide a disability benefit and that's where you get this short-term six-month disability benefit. It pays out anywhere from 6% of your income. Sometimes employers pay out 100% of your income. And obviously, when you come back, things go back to normal 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 hasn't gotten their money yet, somebody is 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-insure it, they call it. And so you get your money that way. But nonetheless, you're going to 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 to the next category, a 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 a substance abuse policy. But they were terminated for the reason of a violation of a substance abuse policy. But they were terminated while they're on femoral medical leave. We don't know why the person was put on femoral medical leave, maybe anxiety or maybe, I'll give it this, that they went, they were ongoing treatment for their substance abuse, call it 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 AA, you are protected as a person with a disability. But if you're not in treatment and,

you know, not in treatment, under treatment care of a physician or therapist, you are not protected under the federal – I'm sorry, the ADA. I've been talking too long today. Sorry. And you're not – you don't have a disability. So if you are in treatment, you do have a disability. So in our fact pattern here, the person was fired while on the leave of absence. 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. You get into

a HIPAA issue, but I don't want to get too far into the fact pattern 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 interest between the employer determining 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 fired them. It was actually a pretty well-known hospital, let's put it that way, in a major metropolitan city. And you wouldn't find that fact pattern normally, but it happened.

And I'm taking these pitches, so to speak, as 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 going to take a defense here that they have a rightful reason. They violate a substance abuse policy of the company. But the plaintiff's side of this situation is to challenge it by saying, not filing a lawsuit, folks. We're just going to file a letter of demand to the employer and try to negotiate something of an exit package. But we're going to say that the employer discriminated against the 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 with 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 that's probably hidden in there, and the employer is probably going to 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. All right. So that's something you can 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 is going to throw in a PIP angle for you. The employee was employed as an account exempt, earning $90,000 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 them. flying at us in terms of calls we get. We get a lot of them. And I did look at the several hundred contacts we've had, and the PIP is happening. It's being called to our attention quite often in terms of the intake. In this fact pattern, we have somebody who's put on a PIP,

and the person feels that they were 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. You can just take your 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 lawyer, like myself, finds that out, I would say that's an interference claim and the lawyer, like myself, finds that out, I would say that's an interference claim and the employer will be liable. I mean, it's pretty black and white

in how I see it. Let's see. The next part of the fact pattern 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 FMLA. 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 an anxiety disorder, you know, anxiety is a mental nervous disability. And you put your employer on notice. your employer on notice. You actually are building a case, whether you knew it or not, for potential severance negotiation for wrongful termination in violation of the 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 and answer format and hopefully you find that very interesting. And you're going to see to your job, what you're encountering. Okay. Take care. If you like the employee survival guide, I'd 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'd 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 as good, right?

I'll keep it up. I'll keep the standards up. I'll keep the information flowing at 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 MCARUY at CAPCLaw.com. That's CAPCLaw.com.