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socrateaser
socrateaser, Lawyer
Category: Employment Law
Satisfied Customers: 38567
Experience:  Retired (mostly)
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My wife went on disability mastectomy breast ca. Her

Customer Question

my wife went on disability for a mastectomy breast ca. Her director told her that she had no more FMLA. She responded she was put on disability per DR. order and that she never filed for FMLA. Her director told her that she filed it for her in order to keep her job. My question is can she file FMLA for my wife without her consent to do so. how is it that having surgery be considered as job abandonment.
Submitted: 1 year ago.
Category: Employment Law
Expert:  socrateaser replied 1 year ago.
Hello, Your question is actually quite novel. There appears to be no appellate case law on whether an employer can allocate FMLA leave for an employee without providing prior notice of the allocation. DOL regulations clearly state that an employer interferes with an employee's rights under FMLA by "refusing to authorize FMLA leave" and "discouraging an employee from using such leave." 29 C.F.R. § 825.220. It follows that an employer has discouraged an employee from taking FMLA leave when his or her supervisor interferes with the length and dates of leave, including denying leave out right. See, e.g., Williams v. Shenango, Inc., 986 F.Supp. 309, 320-21 (W.D.Pa. 1997) (holding that periodic denials of FMLA leave requests and limitations on which week the employee was allowed to take it presented a genuine issue of fact as to whether the employee's rights under FMLA were denied). The statute and the accompanying regulations protect an employee from any employer actions that discourage or interfere with the right to take FMLA leave. 29 C.F.R. § 825.220(1). See generally, Xin Liu v. Amway Corp., 347 F. 3d 1125, 1134 (9th Cir. 2003). The question in your case is whether or not the employer interferes with the employee's lFMLA benefits by allocating them without notice to the employee. The argument in favor is that the employee may not have needed all of the leave allocated, in which case the employer would have definitely interfered in violation of federal law. The counterargument is that without the allocation, the employee would have been terminated immediately, rendering the entire issue moot. If I were the judge, I would rule than an employer has the right to terminate an employee who doesn't request FMLA benefits. By failing to do so, the employer accepts that the employee was not terminated, and the employee retains her right to the FMLA benefits. If your wife wants to fight about this, she will need an employment rights attorney. If you need a link to a reputable lawyer referral service, please let me know that my answer is helpful, and Iwill be happy to provide further information. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using justanswer.com!
Customer: replied 1 year ago.
my question is if you are put on disability due to surg. is fmla required. I thought she would be protected being put on disability by her DR. and fmla is not required.
Expert:  socrateaser replied 1 year ago.
FMLA is the only means of holding a job while unable to work due to a serious health condition. Disability leave does not, by itself, provide any job protection. Your wife's only argument to avoid termination is that the employer voluntarily maintained her employment, while unlawfully utilizing FMLA benefits at the same time. And, then only person who will be able to negotiate a settlement with that legal argument is a lawyer, who must be prepared to sue the employer, if the employer terminates your spouse. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using justanswer.com!