Is it legal for employer not to offer FMLA?

[JesseF83]

Alright, short story here: I'm a waiter, 24 years old. I DO qualify for FMLA. November of '06, I had an inpatient hospitalization (was on disability) and was out of work for about a month - I had enough medical leave for that. Had major back surgery last May and was out of work for about a month and a half (disabled again) - No problem, I had enough medical leave still (Not FMLA). Now, this January, I became disabled due to panic attacks and heart problems. I couldn't perform my job duties and was once again placed on disability until March 1st. My employee terminated me (without notifying me) on January 19 because I didn't have any medical leave left. 1) I was never offered FMLA (nor ever took FMLA). My manager said that when I applied for the job, I signed an agreement not allowing any kind of FMLA during my employment. 1) Is this legal? I thought it was a federal law and if you qualified for it, you could use it. By the way, I reside in California, if that helps. 2) How can they terminate me if I'm legally disabled? I have plenty of documents from docs saying I CANNOT perform my work duties right now. Isn't this a form of disability discrimination? Well, that's about it - any help would be much appreciated.

Thank you in advance,
JesseF83

 

[cbg]

How many employees does your employee have within 75 miles of your location? What was your date of hire? Do you work full time or part time?

You may or may not be correct about FMLA - I need the answer to my questions to say for sure. But you are very seriously misinterpreting the disability laws.

Let's take care of FMLA first.

 

[JesseF83]

Re: FMLA
1) I've worked there for 2 + years (hire date: 10/2006)
2) Company has atleast 200 people working within a 75-mile radius
3) During the last 12 months, I HAVE worked at least 1250 hours (not counting my disability leave, which I believe is the law)
4) I have a "Serious health condition" that needs continued treatement by a health care provider that includes a period of incapacity to a health condition lasting more than three days.

Re: AMA, I may be wrong because I'm not permanently disabled; I wasn't sure if you had to be or not. However, I'd say that I have a temporary impairment that substantially limits one or more major life activities.

Just FYI - My current disability is heart problems, major panic disorder, depression, agoraphobia, low concentration, unable to think clearly, etc. (This coming from my disability papers my Doctor signed)

Again, thanks for your help and I appreciate the reply,
- JesseF83

 

[cbg]

You are correct about FMLA in that case. Your employer must offer FMLA, regardless of what you may sign.

However, what I cannot determine from your post is whether or not you are still due any additional time. FMLA is limited to 12 weeks in a 12 week period, and that does not extend for additional illnesses. You could have six, or ten, or a dozen different qualifying conditions, and you would still be limited to 12 weeks in a 12 month period. I can't tell from your post if you have exceeded that or not.

The US Supreme Court case from 2002, Ragsdale v. Wolverine, established that the failure of an employer to classify time as FMLA, does NOT entitle the employee to additional time. So if you've had 12 weeks in the last 12 months, you are not entitled to any more time, even if your employer failed to classify the time as FMLA. I can't tell from your post if you have or not.

The 12 months can run any number of different ways; calendar year, fiscal year, a rolling year forward; a rolling year back. If the employer has not designated a specific method, the method most beneficial to the employee must be used.

As for disability discrimination, the ADA does not cover temporary disabilities. Many people mistakenly believe that if they are collecting disability benefits, the employer is prohibited from terming them for the duration of the benefits. There is no truth to that belief. An employee who has exceeded their FMLA and whose condition does not meet the definition of a disability under the ADA (and sometimes even if it does - the ADA does not REQUIRE additional time off) can legally be terminated, even if they are still collecting disability benefits. 99.99% of the time, those disabilty benefits are not affected by the termination.

If, after reading the above, you believe that your employer is still in violation of the law, the regulatory agency for FMLA is the US DOL and you would report violations to them. Since your condition is temporary, the ADA does not apply.

 

[JesseF83]

"So if you've had 12 weeks in the last 12 months, you are not entitled to any more time, even if your employer failed to classify the time as FMLA. "

Another question or two:
1) So, even if my employer doesn't classify my leave time as FMLA, it still counts against that time? From my understanding, the company classified it as "Medical leave", notifying me nothing to the extent that it would be coming out of my FMLA. So, let's say we're talking about last year. I was out for about a month and a half due to back surgery (we'll say 7 weeks), then another month for another medical problem (about 5 weeks). So that equals 12-weeks, total. So you're saying that would dissipate all of my FMLA? These leaves of absense were all classified under "Medical leave", and I believe were taken out of my sick time; nothing regarding FMLA. I don't understand that. I thought the two were completely different things?
2) My employer a) didn't notify me that there were any such acts such as the FMLA, etc. b) terminated me without even notifying me. - Are these legal for a company to do?

Thank you again for you help,
- JesseF83

 

[cbg]

Ragsdale v. Wolverine made it very clear that failure to classify time as FMLA did not entitle the employee to any more time. As long as you got all the time that FMLA would entitle you to, you don't get any extra time because your employer failed to tell you that it was FMLA. So if you had 12 weeks off in a 12 month period, even if your employer did not designate it as FMLA, that's the ball game. It doesn't matter what you call it. You can call it medical leave or you can call it FMLA or you can call it George. If you had 12 weeks off total, you are not entitled to any more.

The same goes for your termination. IF you had 12 weeks of medical leave, it was legal to term you, even if your employer did not call it FMLA or notify you that FMLA existed, because you received all the time to which FMLA would entitle you.

 

[JesseF83]

OK, one last question, and I DEFINITELY appreciate your help. I talked to my Business Administrator the other day and she mentioned that the fiscal year just ended and she has a lot of work to do. Would this mean that because it's a new fiscal year, I'm entitled to another 12-week FMLA? Or does the company have the option to choose what 12-month period employees are entitled to their FMLA?

Again, thank you so much,
- JesseF83

 

[cbg]

The company has to elect a 12 month period and stick to it. It DOES NOT HAVE to be the fiscal year. It can be calendar, fiscal, some other fixed year, or a rolling year moving either forwards or backwards. The company can choose which it is. Having chosen it, they have to stick to it.

IF your employer has chosen fiscal year, then the fact that it is a new fiscal year means you get a new 12 weeks. But if they have NOT chosen the fiscal year as the FMLA year, then the fact that it is a new fiscal year means nothing.