wrongful termination

hello, my name is Kelly P and my question is this, in Dec 2003 I was terminated (w/out just cause according to the ohio unemployment office). My situation is quite lenghty to explain,i apologize. In Nov. 2002 I was injured at work (herniated disc) and was taken off work until July 2003, when I returned I had some anxiety problems and filed for FMLA, my condition was excepted although because I was off work for 7 mos, when they went back 12mos to get my 1250 hrs I didn't have enough (only because I was off for hurting myself at there place of employment). If I had an anxiety attack at work and had to leave it was going against my attendance (upon returning to work I always had a drs. slip saying exactly what my FMLA papers stated) and that was there reason for termination. Am I wrong to think that had they taken 12 actual worked mos. instead of the 5 worked and 7 unworked,that I would've qualified for the FMLA that I medically needed?

thank you for your time and I look forward to a response. Kelly P.

1 answer  |  asked Mar 1, 2004 2:36 PM [EST]  |  applies to Ohio

Answers (1)

Ann Lugbill

1. You need to contact your workers comp attorney if your anxiety attack is at all related to the workplace injury. If you do not have a workers compensation attorney, given the types of medical issues you have that are work-related, you should contact an experienced employee's workers comp attorney in your area and meet with that person. Ohio certifies workers comp attorneys as specialisits and you may want to look for someone so certified.

2. 29 C.F.R. 825.110(b),the FMLA regulation here that seems to apply, indicates that your time on workers compensation leave should have been counted toward the 1250 hours, provided that you had worked for the employer for a year. It states:

The 12 months an employee must have been employed by the employer need not be consecutive months. If an employee is maintained on the payroll for any part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation [**7] are provided by the employer (e.g., workers' compensation, group health plan benefits, etc.), the week counts as a week of employment.

See also 29 CFR Secs. 825.207, 825.210(f), 825.216(d),
825.220(d), 825.307(a)(1) and 825.702(d) (1) and (2) regarding the relationship between workers' compensation absences and FMLA leave.

3. Ohio Code 4123.90 prohibits discharges in retaliation against those who have filed workers compensation claims and requires that employees not be terminated who are on temporary total disability (the "Coolidge" case).

I have not been able to find a case directly on point with your FMLA situation and thus urge you to contact the Department of Labor or an attorney knowledgeable in this area of the law as soon as possible.

Ann Lugbill

posted by Ann Lugbill  |  Mar 1, 2004 8:24 PM [EST]

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