Employers 3 day or prior notice FMLA Policy. Is it legal?

I recently left work early, without notifying my supervisor, due to work related stress caused by harassment I get due to a disfigurement. The harassment takes place at work and is done by my coworkers. I was terminated the next night I worked. Although I did not explicitly request FMLA I told my employer why I left. My employers policy is that FMLA can only be taken for a condition that lasts longer than three days. Intermittent leave (which I would have needed) has to be requested in advance. At the time I left work I was under a doctors care and taking antidepressants although I had not requested FMLA. I had, on two previous occasions, notified my employer of the harassment. They said they would look into it.

Questions:

1. Am I covered under the FMLA even though I did not expressly request it and my employer has a 3 day or prior notice policy?
2. Would any of this be covered under work comp since my condition was brought on by work related harassment?
3. Is there a cause of action for the harassment separate from those for the FMLA policy and termination?

3 answers  |  asked Aug 13, 2007 12:19 AM [EST]  |  applies to Illinois

Answers (3)

Aaron Maduff
Employers 3 day or prior notice FMLA Policy. Is it legal?

The short answers are: 1) probably, 1) probably, and 3) yes.

FMLA: Generally, he FMLA does not require that you specifically request medical leave, but rather that the employer know that you are seeking what is otherwise covered leave. You will have to follow it with a medical certification. Your employer does not get to determine what is or is not FMLA covered leave. It either is or it isn't. The definition of a serious medical condition (in the branch that you are describing) comes down to being off for three or more days (not necessarily consecutive) and seeing the doctor for that condition more than once. It sounds like you meet these requirements. Thus, if you meet the remaining requirements of the FMLA (employer has more than 50 employees, you have been there one year or more and have 1250 hours of service in the last year.)

Worker's Compensation: In Illinois, typically, Worker's Compensation covers any kind of work related injury. It can be more difficult to prove that this is an injury that is work related, but we do work with Worker's Compensation attorneys who have succeeded in such circumstances.

Harassment: Handicap harassment is a viable cause of action in Illinois since Baker v. Village of Niles. Our argument in that case was that racial harassment and sexual harassment were already recognized as coming under the anti-discrimnation statute and the concepts are the same for the handicap portion of the statute. But we would have to review this more closely to determine what is the best way to go.

In short, you need to speak to an employment lawyer. Please feel free to call us or any of the other fine lawyers on MEL.
Aaron Maduff

posted by Aaron Maduff  |  Aug 13, 2007 3:33 PM [EST]
Aaron Maduff
Employers 3 day or prior notice FMLA Policy. Is it legal?

The short answers are: 1) probably, 1) probably, and 3) yes.

FMLA: Generally, he FMLA does not require that you specifically request medical leave, but rather that the employer know that you are seeking what is otherwise covered leave. You will have to follow it with a medical certification. Your employer does not get to determine what is or is not FMLA covered leave. It either is or it isn't. The definition of a serious medical condition (in the branch that you are describing) comes down to being off for three or more days (not necessarily consecutive) and seeing the doctor for that condition more than once. It sounds like you meet these requirements. Thus, if you meet the remaining requirements of the FMLA (employer has more than 50 employees, you have been there one year or more and have 1250 hours of service in the last year.)

Worker's Compensation: In Illinois, typically, Worker's Compensation covers any kind of work related injury. It can be more difficult to prove that this is an injury that is work related, but we do work with Worker's Compensation attorneys who have succeeded in such circumstances.

Harassment: Handicap harassment is a viable cause of action in Illinois since Baker v. Village of Niles. Our argument in that case was that racial harassment and sexual harassment were already recognized as coming under the anti-discrimnation statute and the concepts are the same for the handicap portion of the statute. But we would have to review this more closely to determine what is the best way to go.

In short, you need to speak to an employment lawyer. Please feel free to call us or any of the other fine lawyers on MEL.
Aaron Maduff

posted by Aaron Maduff  |  Aug 13, 2007 3:33 PM [EST]
Aaron Maduff
Employers 3 day or prior notice FMLA Policy. Is it legal?

The short answers are: 1) probably, 1) probably, and 3) yes.

FMLA: Generally, he FMLA does not require that you specifically request medical leave, but rather that the employer know that you are seeking what is otherwise covered leave. You will have to follow it with a medical certification. Your employer does not get to determine what is or is not FMLA covered leave. It either is or it isn't. The definition of a serious medical condition (in the branch that you are describing) comes down to being off for three or more days (not necessarily consecutive) and seeing the doctor for that condition more than once. It sounds like you meet these requirements. Thus, if you meet the remaining requirements of the FMLA (employer has more than 50 employees, you have been there one year or more and have 1250 hours of service in the last year.)

Worker's Compensation: In Illinois, typically, Worker's Compensation covers any kind of work related injury. It can be more difficult to prove that this is an injury that is work related, but we do work with Worker's Compensation attorneys who have succeeded in such circumstances.

Harassment: Handicap harassment is a viable cause of action in Illinois since Baker v. Village of Niles. Our argument in that case was that racial harassment and sexual harassment were already recognized as coming under the anti-discrimnation statute and the concepts are the same for the handicap portion of the statute. But we would have to review this more closely to determine what is the best way to go.

In short, you need to speak to an employment lawyer. Please feel free to call us or any of the other fine lawyers on MEL.
Aaron Maduff

posted by Aaron Maduff  |  Aug 13, 2007 3:32 PM [EST]

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