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Joseph , Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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Can I sue my company for making me take FMLA for an illness

Resolved Question:

Can I sue my company for making me take FMLA for an illness when they have let other staff members go on leave without FMLA and they were paid 100% of their wages during this time.

Im ok with taking FMLA but im not ok only getting 60% of my wages and paying 100% of my medical premium im full when other didn't have to!

I feel like this is a discrimination issue.

Im in the state of CA.
Submitted: 3 years ago.
Category: California Employment Law
Expert:  Joseph replied 3 years ago.
Hello and welcome to JustAnswer.

I'm very sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service.

Did you have PTO or sick days available when you were forced to take FMLA leave at a reduced rate? Did you receive SDI while you were on FMLA leave?

Also, do you believe that this was discrimination due to a protected characteristic (such as race, gender, national origin, or ethnicity) or do you just believe that you were treated unfairly relative to other employees?
Customer: replied 3 years ago.
I have some PTO and STD in my ee bank which I have to take and after its gone, the state of ca 60% will kick in.

The other staff took leave ( one for 5 weeks and other took 6 months)
Neither of them had to ise their PTO or STD or go on FMLA. They were paid their regular salary and had full medical benefits.

I feel like its me and not fair. Not a protected class issue
Expert:  Joseph replied 3 years ago.
Hello Ashley,

Do you (or the other staff) have employment contracts with your employer that state that you don't have to use PTO, STD, or FMLA in the event of an illness or injury?
Customer: replied 3 years ago.
No, we dont.
HR picks and chooses who will and wont
Expert:  Joseph replied 3 years ago.
Hello Ashely,

Again, my goal is to provide you with excellent service today.

I hate to be the bearer of bad news, but I regret to have to inform you that there is nothing illegal about HR and your employer's practices, although they are extremely unfair and unethical.

Unless you are being discriminated against and treated unfairly relative to other employees on the basis of a protected characteristic you would not have a cause of action against your employer forforcing you to use FMLA leave while allowing other employees in the same situation to go on leave with 100% salary and benefits.

While it is very unethical, and extremely aggravating (I can relate having been in similar employment situations myself), it is not illegal for an employer or an employer's HR department to have 'favorites' and to treat people differently based on liking them more, thinking they tell funnier jokes, or any reason, as long as it is not due to a protected characteristic.

Personally, I sincerely XXXXX XXXXX were different and that it would be mandatory for an employee to have the same leave options available for all employees, but the current status of the law does allow employers to provide benefits to certain employees over others.

The primary benefit of using FMLA leave is that it is job protected leave, and your employer is prevented from discriminating against you for your use of FMLA leave or retaliating against you for using FMLA leave when you return. (If you were not forced to take FMLA leave, you would not be afforded the same legal protections and your employer could terminate you while on leave, even if you are being provided with full salary and benefits at the time).

If you do feel that you have been discriminated against or retaliated against on the basis of your use of FMLA leave, you can and should file a complaint with the EEOC, which you can do using the information available online here:

I realize that the news I have to give you is not entirely favorable to your situation, and I sincerely XXXXX XXXXX had better news to give you, but it would be unprofessional of me to provide you with anything less than an honest and complete answer to your question, and wouldn't be of any service to you if I did.

Please let me know if you have any follow up questions or need any additional information.

Thanks and best of luck!
Joseph, Lawyer
Satisfied Customers: 5299
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 3 years ago.
Sorry about the above typo of your name, Ashley.

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