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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Can I file for stress leave? I have been very stressed out

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Can I file for stress leave? I have been very stressed out at work. Today, I was humiliated. My boss left a copy of my (bad) performance evaluation in plain view on the photocopier while he and I and HR had a 1 hour meeting behind closed doors. When we finished our meeting, I walked by the photocopier and noticed a copy of my evaluation in plain view. I immediately felt humiliated. There are about 10 people that use that copier. I asked my boss if we can talk privately behind closed doors. I told him what I saw. He said it was the copy he thought he had lost. I told him I was humiliated. I then called the HR lady on her cell phone and left her a message about what had just happened. She called me back to empathize but offered no solution. If I don't go to work tomorrow, would I need to have my doctor give me a note that tells work I need to take time off? Is that FMLA or worker's comp? What are the pros and cons to either? Will my work have access to my medical files in either case? Will I be subjected to a 2nd opinion from a doctor of their choosing? What is my statute of limitations of filing something? Can I sue?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question. I am so sorry to hear about your mistreatment at work and certainly agree that it is uncalled for for a boss to leave a negative performance evaluation out in the open for everyone to see. As a matter of courtesy, those things should remain private.

If a doctor declares that your stress and anxiety constitute a "serious health condition," you may be eligible to take up to 12 weeks of unpaid protected job leave pursuant to the Family Medical Leave Act.

The FMLA is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave on account of, among other things, an employee’s own serious health condition which prevents him/her from working.

In order to be “eligible” the employee must have worked for the employer for at least one year, and worked roughly 30 hours per week (on average) during that year. Also, only employers with at least 50 employees within 75 miles of the employee’s work site are required to provide FMLA protections.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position, if he/she returns on or before the expiration of the 12-week leave period.

For more information regarding FMLA leave, visit this link:

In addition to FMLA, in certain very limited circumstances California courts will recognize job-related workers compensation claims. However, insurers vigorously fight these claims and treat them with great skepticism. Further, the burden of proof is on the plaintiff and typically requires them to show that the behavior of co-workers or their employer "shocked the conscience." This is a very hard thing to prove. Accordingly, it is quite rare that a workers compensation claim for job induced stress is successful.

So, if you are eligible for FMLA leave and a doctor declares your stress and anxiety as a serious health condition, you may be eligible for protected leave. You can also try to file a workers comp claim, though this probably would not be successful.

The big caveat to all of this is that, while an employee cannot be retaliated against for taking FMLA leave or filing for workers comp, these things do not prohibit an employer from terminating an employee for reasons not related to the FMLA or workers comp. In other words, employees can't "evade" termination by filing for workers comp or FMLA. Since you state that the events giving rise to your stress claim revolve around a negative performance review, an employer in this circumstance would likely be able to justify termination on the ground that it was not in retaliation for FMLA or workers comp, but for performance related issues that existed prior to your taking of that leave.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
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