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Tina
Tina, Lawyer
Category: Employment Law
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Can an employer place you on FMLA if you have not requested

Resolved Question:

Can an employer place you on FMLA if you have not requested it and you don't have a medical need for it?
Submitted: 4 years ago.
Category: Employment Law
Expert:  Tina replied 4 years ago.
Thank you for contacting our JA team for guidance. We are happy to assist you. However, we need a bit more information to more fully answer your question.

What is the employer's reasoning for placing you on FMLA leave?

Customer: replied 4 years ago.
It's actually my daughter. She was removed from her job for performance issues. Since she is 5 months pregnant, they said they would a) put her on FMLA for three months, b) then she could file for State Disability for her pregnancy at the end of the FMLA, c) she could apply for other jobs during this period, but there was no guarantee, d) they would allow her to staty on their insurance. At the end of her pregnancy disability, in late August, they would formally terminate her if she did not have another offer at the company, and she could start collecting her unemployment at that time. I have just never heard of an employer "placing" an employee on FMLA when it was not their request. This is unpaid leave, of course. I'm not sure if she shouldn't just say terminate me now and apply for her unemployment and COBRA. Since there is a COBRA relief act of some kind right now, she'd probably pay less for her insurance that way than staying on the company's insurance and paying the premium by check each month.
Expert:  Tina replied 4 years ago.
The employer appears to be doing this to avoid a lawsuit since she is pregnant. Legally, they can terminate her for performance issues even though she is pregnant. They cannot terminate her for being pregnant though. If there are genuine performance issues, then it is questionable as to whether she would be eligible for unemployment benefits since the reason for being unemployed must be through no fault of the employee.

In addition, she would not be eligible for the COBRA subsidy if the employer can actually prove that there are performance issues unrelated to her pregnancy. If this is the case, she should not force them to terminate her, but would be eligible for disability benefits while her physician indicates that she cannot work due to the pregnancy.

Please let me know if you need clarification by pressing the "Reply" button. If you press "Relist", I will not be notified that you have requested my assistance.

Best regards XXXXX XXXXX

Tina G

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Tina, Lawyer
Category: Employment Law
Satisfied Customers: 32121
Experience: JD, BBA, recognized by ABA for excellence.
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