can I be told not to call in anymore if I have accrued six weeks sick leave?

I recently found out my step mother has throat/ lung cancer and she lives 3 hours away. I called in my sick leave every day consecutively while caring for my step mother. While in Indiana caring for my step mother, my brother missed a court date, got a warrant, and asked me to take custody of his disabled 2 year old child. The Kokomo police were informed as there was an open childrens service case. Before I could get my brother to my county to file for full custody he went to jail, preventing him from going to court and giving me custody. I in the meantime had temporary custody of his disabled 2 year old, and called in for 3 weeks while I had her as she knew no one in Ohio but myself. By the end of the 3rd week my employer Time Warner told me to quit calling in that they would no longer hold my position, even though I still had 3 additional weeks sick leave and 3 weeks vacation built up. They then sent a letter saying that I could "voluntarily" quit my job if I chose to do so, so that there was not a termination on my record. It is my understanding that I can take fmla for my step mother having undergone chemotherapy treatment and needed my help, and aslo for adopting my brothers child, and then the fact that she is disabled and receives a social security disability check for this disability. can they tell me not to call in anymore the position will no longer be held even though I still had 3 weeks sick leave, and 3 weeks vacation, and not one person stated that I should take fmla for any of the 3 reasons that I was in fact entitled to take it for?

1 answer  |  asked Apr 11, 2013 07:23 AM [EST]  |  applies to Ohio

Answers (1)

Neil Klingshirn
The question, I think, is whether caring for a step parent with a serious health condition, or caring for your brother's child, is protected by the FMLA.

First, I will assume that you worked for this employer for more than a year, and worked over 1,250 hours during the last year, at a work location with 50 or more people. Based on those assumptions, you would qualify for FMLA coverage. That leaves the question of whether or not the reasons for your absences are covered by the FMLA.

Caring for a step parent is not covered by the FMLA. The FMLA allows absences to care for a "parent," defined as "the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter." This definition does not include step parents, and the Department of Labor FMLA regulations state that the definition of parents does not cover "in laws."

The FMLA also permits coverage "because of the placement of a son or daughter with the employee for adoption or foster care." Adoption means "legally and permanently assuming the responsibility of raising a child on one's own."

Foster care means "24 hour care for children in substitution for, and away from, their parents or guardian. Such placement is made by or with the agreement of the Sate as a result of a voluntary agreement between the parent or guardian that the child be removed from the home, or pursuant to a judicial determination of the necessity for for foster care, and involves the agreement between the State and foster family that the foster family will take care of the child."

It is not clear from your question whether you are permanently adopting you brother's children. It is also not clear whether you, your brother and the state have agreed to place his children with you for foster care. In order to evaluate these issues, you will need to consult with an experienced employment lawyer.

Finally, if you are adopting the children or there is an agreement with the state that you will provide foster care, then a remaining issue is whether the company was aware of that.

posted by Neil Klingshirn  |  Apr 11, 2013 09:07 AM [EST]

Answer This Question

Sign In to Answer this Question

Related Questions with Answers

Have an Employment Law question?

Contact Neil Klingshirn

Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist
Independence, OH
Phone: 216-382-2500