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Filing FMLA AFTER Wrongful Termination

Discussion in 'Termination: Firing & Resignation' started by WyWren, Apr 16, 2009.

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  1. WyWren

    WyWren Law Topic Starter New Member

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    My jurisdiction is: Wyoming

    I filed with the EEOC for harrassment and was terminated a few weeks after apprising my employer of this. I then refiled with EEOC to include wrongful termination.
    In the month before, I also told a supervisor I needed to see a therapist for the emotional stress the job was causing, and also sent an email to HR which referenced my alerting my supervisor to the need for therapy.

    My company filed with their WC insurance for a knee injury the same month, but never let them know of my request for stress therapy. The state of Wyoming does not allow WC for mental stress or PTSD for job-related reasons unless it arises out of a physical injury. My PTSD has nothing to do with the knee injury.
    I am unable to work at present due to the PTSD but I'm assuming its too late (its been two months since termination) to file for FMLA? Is there anything else I can do?
     
    Green_Hornet likes this.
  2. mlane58

    mlane58 New Member

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    You would have to be employed with that employer to be FMLA eligable.
     
  3. wrongman

    wrongman New Member

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    I think only this what you can take now,
     
  4. theretoo

    theretoo New Member

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    i was diagnosed with ptsd due to workplace harrassment, constructive discharge, etc. i am in ca and i was 'discharged' while out on fmla/disability. http://www.dol.gov/esa/whd/fmla/finalrule.htm
    i also have a workers comp case and just completed my qme exam in which the qme agrees with 'abuse' in the workplace and that it is directly related to my employment with the company. workers comp is a federal thing as well as state and at least in my case of ptsd, it is covered by workers comp as a workplace injury as an injury to my psyche. i also have a claim with the state of ca for disability discrimination as well as the other mentioned illegal employer activities. it does fall under osha and workplace safety/violence in the workplace if you have been physically or verbally abused/threatened in the workplace.
     
  5. theretoo

    theretoo New Member

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    it is your employer's responsibility to notify you within 2 days if your time is fmla. if you gave them notice that you have a condition that would fall under fmla and they dismissed you, then contact your local office of the us department of labor as your employer violated your fmla rights. in the case of wyoming, you would contact the utah division. they obviously retaliated against you for contacting the eeoc. if you have the email correspondence to give to the dol to prove you notified your employer. if you notified your employer of the need for treatment for a health condition that may be covered by fmla, and your ptsd most likely is, regardless of whether you it might be workers comp, then your employer failed to provide you with fmla for your condition.

    http://www.dol.gov/esa/whd/america2.htm#Utah

    http://www.dol.gov/esa/whd/regs/compliance/1421.htm
     
  6. cbg

    cbg Super Moderator

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    Last edited: Sep 1, 2009
  7. theretoo

    theretoo New Member

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  8. theretoo

    theretoo New Member

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    if the employee gave notice of a health condition while still employed and the employer failed to offer fmla while the employee was still employed, regardless of workers comp status, then the employer violated federal fmla law. the employee was discharged after notifiying the employer of a health condition that would be covered by federal fmla and most likely ada and could also be a workers comp claim. ;)
     
  9. cbg

    cbg Super Moderator

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    Except that according to the poster, that isn't what happened.

    The employee has already been terminated and is asking if s/he can NOW file for FMLA. S/he cannot since s/he is no longer employed.

    And I'm not sure on what you are basing your assumption that a violation of FMLA triggers the ADA, but it does not.
     
  10. theretoo

    theretoo New Member

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    fmla does not automatically bring in an ada concern, but could. my understanding from the op was that when they notified the employer that they needed therapy for the workers comp claim, that his information should have triggered the employer to another health condistion that may fall under the fmla, that was while the op was still employed, correct. my understanding would be that that should have been enough notice to the employer, while the employee was still employed, to trigger the employer to inquire about the necessity for fmla, while the emplee was still employed, correct.
     
  11. cbg

    cbg Super Moderator

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    None of which has anything to do with the ADA.

    FMLA and the ADA are two different laws which serve two different purposes and have different eligibility requirements. Sometimes they overlap. Most often they don't.

    I do not understand the poster to be asking the same question you do. While I agree that it is likely that a FMLA violation has occurred, that still does not give the poster the ability to apply for FMLA once s/he has already been termed. Which is what she was asking. Read her last paragraph.

    And I'm still not seeing anything to suggest that the ADA is involved.
     
  12. theretoo

    theretoo New Member

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    agreed, ada and fmla are seperate, however, if poster notified employer, while employed, of the work related ptsd and need for treatment and was not given the fmla at that time, would it not suffice that that action may constitute ada disability discrimination as ptsd is or at least can be, a debilitating disability and is probably covered under ada.
    in my particular case in ca with the ca dept of fair empl and housing, my employer's continual denial of my fmla/cfra are amongst a list of things leading to the state's investigation of disability discrimination. if an employer provides/approves fmla/cfra for other illnesses/injuries/disabilities and then denies it for someone else with proper medical documentation, that could constitute discrimination based on the type of illness/injury/disability that individual has. if the employee has medical documentation that their condition constitutes a disability and the employer refuses to acknowledge that, as they also did in my case, that can be construed as discrimination based on that individual's type of disability.
     
  13. cbg

    cbg Super Moderator

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    Your case is irrevelant to the poster's.

    In any case I do not think you understand what triggers ADA protection. In the absence of obvious indicators such as a wheelchair or crutches, an employer who assumes that an employee needs ADA protection without being asked can, in many cases, be discriminating. The employer should not be the one assuming that the employee is incapable of doing their job without accomodation unless it is so obvious that it cannot possibly be missed. "Perceiving" the employee as disabled without the request of the employee can open the employer up to legal difficulties that they might not have had, had they allowed the employee to make the decision what they were and were not able to do. There is only one condition, and one condition only, that automatically qualifies for ADA protection and that condition is NOT PTSD.

    FMLA, on the other hand, has a differing trigger indicator. Unlike the ADA, which rightly should be an issue raised by the employee, FMLA is fully the responsibility of the employer to raise.

    I think we both agree that there is likely a FMLA violation here. However, two months after termination the poster cannot go back and ask the employer for FMLA - her recourse is to make a complaint to the US DOL. And there is STILL nothing, despite your attempts to make it so, to indicate that the ADA should have been involved.
     
  14. theretoo

    theretoo New Member

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  15. theretoo

    theretoo New Member

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  16. cbg

    cbg Super Moderator

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    The fact that pysch claims CAN be covered under the ADA does NOT mean that in this particular situation, the employer's failure to provide FMLA makes the ADA applicable.

    But I'm tired of arguing with you. If you want to give inaccurate and incorrect advice because you do not understand how the law works, I suppose I'm just going to have to let you.
     
  17. theretoo

    theretoo New Member

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    http://www.dfeh.ca.gov/DFEH/Publications/caseLawAlerts.aspx

    right back at ya':no:

    my hr rep wants to be a 'consultant; also and doesn't get it either
     
    Last edited: Sep 5, 2009
  18. Green_Hornet

    Green_Hornet New Member

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    Possible case of retaliation let the EEOC run their investigation, contact an attorney.
     

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