RE: Asked 3 questions and no responses for months. Anyone out there?

In response to Jim Barna: Can my employer deny my leave which is potentially FMLA qualifying after adequate notice without asking me further questions or for medical certification and not providing rights and responsibilities documents? I took the semi emergent leave anyway.

Leave flatly denied despite adequate notice of leave to care for autistic son. No further questions, no request for certification and no FMLA paperwork (rights and responsibilities) Took leave anyway and was subsequently terminated for unauthorized leave. There claim was that due to operational needs I couldn't take off -

1 answer  |  asked Mar 25, 2016 11:25 AM [EST]  |  applies to New York

Answers (1)

V Jonas Urba
Semi emergent leave?

Was this the first time that you took leave to care for your autistic son? Autism is not a spontaneous condition. It's usually serious and usually qualifies under the FMLA. Such conditions usually necessitate some advance notice to your employer.

The FMLA protects employees but the notice requirements under the FMLA also protect the operational needs of employers. If it's not emergency medical care it may not qualify.

It would be pretty unusual for an employer with 50 or more employees not to provide any employee, who may potentially qualify to care for a family member as permitted under the FMLA, with medical certification forms. You may have described a non-qualifying reason for taking leave and the employer accepted the risk of not providing you with a form.

Did your employer inform you that the reason for your leave was non-qualifying and you "took leave anyway"? If your reason has not been medically certified for an entire day off work were you in fact fired? Being denied unemployment benefits might confirm that you voluntarily separated from your job? Did you timely fight for and receive such benefits?

Assuming you won your unemployment hearing you probably introduced medical records associated with your son's "semi emergent" medical care or treatment on the day you took off. Hopefully you provided these records to your employer at the time that it informed you that you no longer had a job.

Some reasons that other lawyers have not responded to your inquiry might be because we have no knowledge of your prior attendance record at work, whether you had a history of inconsistent leave requests, whether your employer received reliable information from another employee or outside source casting doubt on your prior leave requests, or whether your had suspicious patterns of absences?

We do not know why it was necessary for you to take the entire day off unless your son was hospitalized. Even if you obtained an after-acquired doctor's note will a second or third medical opinion confirm that it was necessary for you to be with your son for the entire day?

Both you and your employer took risks. Another reason why no attorney has responded to your prior posts might be because "potentially FMLA qualifying" does not exist. You either have medical records which excuse you from being at work for the entire day, which you shared with your prior employer either before or at the time they fired you, or you don't. The medical records with implied certification will either hold up to second and third medical opinions or they will not.

posted by V Jonas Urba  |  Mar 25, 2016 2:28 PM [EST]

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