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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18789
Experience:  Employment/Labor Law Litigation
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I get very bad migraine head acks that I have to be hospitalized

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I get very bad migraine head acks that I have to be hospitalized that last 2 to 3 days. i get 3 kinds of steroids by IV. I have seen several Doctors, had the head implants for pain and tried a number of drugs with not no help. Been in the ER 15 or 20 times. I am a RN and every time I was off work with this condition I was Hospitalized.Worked there about 2 yrs.Got a letter to the efect of being terminated. can they do that. I live in Baton Rouge,La.

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.


Had you not gone through the process of filing for FMLA leave for your time off? Was that even discussed with you?


What reason was given for your termination?

Customer: replied 3 years ago.

My first hospitalization was last March and I went on FMLA medical leave but once I realized that I was needing to be hospitalized so many times (approx 1-2x/month, about 10 hospitalizations since then and countless ER visits), I've applied for FMLA intermittent leave so that when I would get admitted for my infusions, the intermittent leave would kick in and then once I'm discharged, I can go back to work but the last 3 hospitalizations, I was denied the leave bc of "hardships on the unit". I was given a verbal warning and then a written warning right before my last hospital admission. I was discharged on July 27 and I went on vacation so I haven't been back to work yet but I foresee me getting in trouble when I return. I'll also have you know that every time I do call off from work, I am a patient in the hospital I work at, not once have I called off without being a patient. Termination hasn't come up yet but I kind of have a feeling that will be discussed once I return from vacation.

Wait, you were denied FMLA leave by your employer based on "hardships on the unit?"

And you are using the term "discharged" in reference to being released from the hospital and not the employment law meaning of terminaion from your employment, correct?

So, you are just suspecting that you'll be terminated when you get back.
Customer: replied 3 years ago.

Correct, I was denied FMLA intermittent leave the last 3 times I applied bc of "hardships on the unit". I'm sorry, I was using discharged meaning from my stay in the hospital. I was not terminated yet, but with my verbal and written warning already for calling off sick, I don't know what else they will do once I return from vacation. I'm just curious if they can terminate me with my health condition, I know I miss a lot of work but I'm never just home and feel the need to call off, each time I miss work, I'm a patient.

Ok. You need to contact the Department of Labor immediately. The employer can deny certain reasonable accommodation requests under the ADA as unreasonable, but they can not simply deny FMLA when a doctor is granting you the right to it.

If you're using your own hospital to request FMLA certification, then they are not doing this correctly. You don't get denied FMLA due to company issues. You get denied FMLA, if it is a legal denial, based on the fact that your illness doesn't legally warrant it.

So, I would contact the Department of Labor and force your employer to explain their denial of FMLA leave.
Customer: replied 3 years ago.

ok, thank you. can I contact the dept of labor on my own or do i need a lawyer to do so? if i get back to work and get suspended or whatever they do next with me having another hospital visit, should i hire a lawyer? do i have a case to pursue?

You can contact them on your own. You don't need an attorney to do so.

If you go back to work and they suspend you based on absences that should have been granted FMLA coverage, you will have a claim of FMLA hindrance and discrimination by the employer.

I would first go through the Department of Labor. They provide you with the right to sue letter and sometimes choose to sue for you, such that, you wouldn't need to hire and attorney. If they just give you the right to sue letter, then hire an attorney and you'll be armed with the fruits of their investigation.
Customer: replied 3 years ago.

so just to clarify, I have a medical issue that causes me to miss work. So there should be no reason they could deny me FMLA because it leaves the staff short handed on my unit. Which as I understand is what they mean by "hardships on the unit". Secondly, excessive absences from work due to my medical condition (which are documented by hospital admissions at the facility where I work) should not be a valid reason for them to suspend or terminate me?

Yes, correct on both points.

Unlike the ADA, the FMLA doesn't give the employer the option to refuse FMLA. They can sometimes refuse a return to work if a key person (like a CEO) has to take 12 weeks off of FMLA and the company can't do without that person and must replace them with someone other than temporary.

But, all that said, that has nothing to do with your situation. Absences that are covered, or should be, by the FMLA can not be used as a basis for termination. You have up to 12 weeks of protected FMLA leave available a year.

Customer: replied 3 years ago.

Well, my husband and I greatly appreciate your advice. Thank you for taking the time to help me out. I will definitely be contacting the Louisiana Department of Labor when I return from vacation.

No problem. Take care and good luck going forward.
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