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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18790
Experience:  Employment/Labor Law Litigation
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I got fired sick. My fmla had expired. But was in the

Customer Question

I got fired for being sick. My fmla had expired. But was in the process of being recertified. My fmla had just expired in April and I had made an appointment with her when she would have gotten back. My fmla is for my migraines. My HR person has in the past,when I was waiting to get the FMLA, SHE WOULD retroactively the days I missed for my headaches. What caused me to be fired was being in leave without pay. My migraines were attributed to my monthly cycle. This most recent time off with migraines was due to sinusitis. I got doctors notes for every day that I was off. What to do? They are just tiredon't of dealing with fmla. I have worked there for 19 years. She has stated to me in the past that even if I have a migraine ,but am currently exhausted all of my fmla leave that she would have to assign it to fmla anyway
Is she violating any laws concerning fmla?
Submitted: 5 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 5 months ago.
Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. The problem here is that you either have to take time off that is FMLA covered or it is unprotected time and you can be terminated just for being out of work. The FMLA specifically allows an employer to assign time as FMLA use when they are made aware of a medical condition. Certainly, having the doctor certify the FMLA time is a good choice, but it's not really required. That certification is for the employer's benefit, not yours. So the fact that your FMLA certification had lapsed doesn't mean that the time off you were taking wasn't FMLA related, so it could be counted as FMLA time. However, even if it couldn't, then every time you missed a day that was during a lapsed FMLA certification period, every one of those missed days was an unprotected and terminable offense. So really, it's not help here if she didn't assign FMLA use to those days, because it doesn't extend your protected time. If you missed time and that time was not longer protected by FMLA because you had exhausted all of your leave for the year, you could legally be terminated. When Congress passed this law, that placed limitations on it. You are correct that the employer is probably just reacting because they are tired of dealing with FMLA, but that would only be a legal issue if they fired you and you still had FMLA leave left to take. Here you don't, having exhausted it all, and fair or not Congress made the law so that in that situation employers could terminate. If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.
Customer: replied 5 months ago.
I ran out my personal and vacation time. I really hadn't exhausted my allowed fmla time. I think fmla allows 12 weeks. It just needed to be recertified, which I was in the process of doing. Could I get my fmla filled out and would she have to retroactively apply it?
Customer: replied 5 months ago.
My fmla was in limbo that's why I got the doctor's notes about my migraines. She did it before? Could it be discrimination if she did it for me before
Expert:  Allen M., Esq. replied 5 months ago.
I see. That's more clear and make a different situation. If you had explained to the employer that you were missing time based on an FMLA related issue and you were making efforts to get that recertification done, the employer can retroactively apply FMLA. They can't slavishly ignore that your request was an FMLA request. If she did it before and won't do it now, it certainly calls into question the reason why. Get the certification, turn it in and state that they knew from previous use that you were FMLA certified before and were just waiting on paperwork this time around. If they don't immediately reinstate you, contact the Department of Labor.
Customer: replied 5 months ago.
Of course. I was let go via FedEx. No one will call me back. There are three tiers of discipline. 3 days if unpaid leave, which I have already had the 3 day suspension. The next is 5 days unpaid and then 10 days! Should I have been given the next step and got 5 days unpaid?
Expert:  Allen M., Esq. replied 5 months ago.
If they have a progressive process, then yes they should have taken you through the same disciplinary process, not treated you worse. Of course, with retroactive use of FMLA, there should be no punishment at all.
Expert:  Allen M., Esq. replied 5 months ago.
Hello, I wanted to check in and make sure that there was not any additional information that you required. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.