Wrongful Termination?

MissEllen · Feb 26, 2012

My husband was just terminated secondary to excessive absenteeism His absences have been related to my infants son illness and he has provided medical notes each time. He does Qualify for Fmla and we just received the forms back from the MD on the day he was terminated so they were never handed in. Do we have a case here? We just want his job reinstated

army judge · Feb 26, 2012

MissEllen said: ↑

My husband was just terminated secondary to excessive absenteeism His absences have been related to my infants son illness and he has provided medical notes each time. He does Qualify for Fmla and we just received the forms back from the MD on the day he was terminated so they were never handed in. Do we have a case here? We just want his job reinstated
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Nothing overcomes failure, unless you try!

That said, I doubt that he'll get his job back.

FMLA doesn't mean you can't be terminated.

FMLA also doesn't mean the time off has to be with pay.

And, employers are not required to provide a reason for terminating employees.

cbg · Feb 26, 2012

How much time, in total, has he missed?

More importantly, how long between when he was given the forms for the doctor and when they were handed in?

MissEllen · Feb 26, 2012

He wasn't given the forms by his employer. It was the Dr. Idea when she saw how much work was missed- 2 days this month plus two upcoming, and 2 last month. We didn't even know we would be eligible. We were initially hoping that the condition would resolve on its own but that's not the case and now the baby needs surgery within a month. He is in a union and was currently on a progressive attendance plan. He had to take the day to go to this appointment- he only had 7.5 hours sick time in his bank, but a sick day is considered 8. Thereby causing a violation to his attendance plan for the 1/2 hour he didn't have in the bank. He took the baby to the appt on tues and was fired on Friday. He did provide MD note that stated he was at the appointment and that we were waiting for Fmla papers from doctor and would submit by Monday. I'm not concerned with the pay- we just want the job back

MissEllen · Feb 26, 2012

Plus a lot of appts in the past but we know those won't count and at that point he wasn't in hot water

MissEllen · Feb 26, 2012

He didn't have a chance to turn in because he was terminated. The Dr gave us back the paperwork on Friday- but he doesn't work thurs or Fridays. He works sat- wed. He was going to bring in on Sat but he was terminated friday? The papers are dated for the date he missed

MissEllen · Feb 26, 2012

The papers are dated for the day he missed

cbg · Feb 26, 2012

Okay, that being the case, I need you to answer these questions, and there is a reason for each and every one of them so please answer them as directly as you can.

1.) How long has he worked for this employer?

2.) How many employees does the employer have within 50 miles of his location?

3.) In the last 12 months, has he worked a minimum of 1,250 hours?

4.) In the last 12 months, EXACTLY (or as exactly as you can) how many days work has he missed reasons related to your child's illness?

5.) In the last 12 months, EXACTLY (or as exactly as you can) how many days has he missed for all other reasons?

6.) Does the employer know the NATURE of the child's illness, and if so, when did they learn it?

MissEllen · Feb 26, 2012

1) 12 years

2) over 500 employees

3) yes- over 1,250 hours

4) roughly 6 absences

5) 0 days for other reasons

6) yes as each time he was out he provided a note from the doctor stating he was out secondary to the child's illness

MissEllen · Feb 26, 2012

The union is meeting with the supervisors tomorrow to see if they will re-instate as they may be unaware of FMLA filing- perhaps the personnell lady never conveyed the info, but at the same time I am sure the supivisor saw the Dr. Note. My husband is concerned that they will stick to their guns on this to make an example out of him (see they fired him over a half a hour) as apparently there has been a lot of attendance abuse lately. - I am hoping they dont come back along the lines---too bad, you didn't have the paperwork on file at the time of absence the termination will not be reversed

cbg · Feb 27, 2012

That's not what I meant regarding #6. A doctor's note is not necessarily sufficient to put the employer on notice that FMLA is indicated. Does the employer know what's wrong with the child? What IS wrong with the child?

esteele · Feb 28, 2012

One, you and your husband should review his collective bargaining agreement closely. Many CBAs expressly incorporate the Family Medical Leave Act. If so, his termination would apparently contravene the CBA as well as the FMLA itself.

Two, in addition to pressing his union to take his grievance to arbitration if necessary, he should consult with a local employment lawyer to ascertain his potential judicial remedies under FMLA. OP, based on your responses, it would appear your husband has a potentially solid FMLA claim.

At bottom, an employer covered under FMLA cannot utilize FMLA covered leave -- up to twelve weeks of unpaid medical leave to address “serious health conditions” for himself or for a spouse or a child -- as the basis, in totality or in part, to discipline or discharge a worker. Based on what you have written, OP, this appears to be what his employer has done here.

MissEllen · Feb 29, 2012

He notified them later in the day- the same day he called in. He told the woman in Personnell that he would be filing Fmla and that the Dr. Would have the paper work completed in a few days. He did tell the woman that my son was having a flare up of his condition. No, he never went into specific detail re: the condition. My husband said she never asked

My son has chronic ear infections (yes, I know, typically not qualifying as serious illness) but his has been ongoing since August. His flare ups are difficult to treat usually requiring multiple antibiotics during a short period of time. We are on office visit 8 this month and antibiotic 4&5- sometimes it can take up o 8 courses of antibiotics in a month to decrease his symptoms. He gets very high fevers which cause dehydration and he won't eat which at this point is causing him to fail to gain weight (he's 16 months). As a result of chronic antibiotic use he has now developed an intestinal issue which is further compromising his fluid and nutritional status. He is at risk for hearing loss. Requires surgery and hopefully will have in the next few weeks if this flare up subsides

The union did meet with the administration today, and stated that they will not consider the fmla papers as he was terminated, and no longer an employee when they were submitted. He was out on Tuesday, terminated Friday, and documents were forwarded to Personnell Monday morning. We will have to get an atty to appeal the termination, which instructions were included how to appeal to the commission enclosed with letter of termination. We just want the job back- we don't want a long drawn out litigation- can't afford that

Proserpina · Feb 29, 2012

I hate to say this OP, but I don't see this working in your husband's favor given the latest information you have provided.

Even with an attorney.

disagreeable · Feb 29, 2012

Your husband needs to consult with his BA about what needs to be done for the union to support his being reinstated. What union was he in? Have you perused the contract for a grievance to file? You must act quickly to protect his rights under the contract.

esteele · Feb 29, 2012

If your son required medical attention from a physician, his condition may nonetheless be deemed as a “serious health condition” under FMLA. Your prospective counsel can check the applicable regulations.

Nor is the “late” submission of the FMLA paperwork necessarily determinative here. If the underlying leave was covered under FMLA, the employer cannot dodge its responsibility under the law by arguing it did not have the FMLA paperwork back from the doctor. Again, an employer covered under FMLA cannot utilize FMLA covered leave as the basis, in totality or in part, to discipline or discharge a worker. If the submitted doctor’s notes indicating that your husband repeatedly escorted your son to the physician for medical treatment, these notes may constitute sufficient notice to the employer to trigger its obligation under FMLA.

Lastly, OP, what do you mean you will have obtain an attorney “to appeal the termination.” Is there an appeal procedure? Where did your husband work? Is the union taking the matter to arbitration or otherwise “appealing” his termination?

disagreeable · Feb 29, 2012

OP, you need to understand that interpretation of articles in a union contract are subjective. Your hubby could be 90% wrong and still get his job back, if the union pursues his grievance actively. They may not encourage him to file it, though he has the right to. We need more info on the union and any other related info.

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