FMLA after dismissal

akfrank · December 2001

Looking for caselaw or helpful input from other HR/legal professionals regarding cases in which ee attempted to assert FMLA rights after being notified of dismissal. Thank you.

kaad · December 2001

I am assuming the employee said he/she was in the midst of claiming FMLA when he/she was terminated? If he/she was on FMLA when dismissed, that is a different issue. I'd recommend that you investigate. If the employee told a supervisor that he/she was seeking FMLA prior to dismissal, you may have a problem on a complaint. DOL investigation may take a long time and you may end up with lots of back pay. Better to handle quickly.

akfrank · December 2001

Thanks for response. No, EE had not notified anyone they were seeking leave for FMLA reasons. Day following notification of intent to dismiss, EE left physician certification in unoccupied HR office to be found later. At no time did EE request leave of absence or indicate a need for future leave.

bsa · December 2001

How did EE get the form for the doctor? How did EE place it in an office without being noticed by someone, anyone? I would follow thru with evaluation of medical certification. Surely a physician can complete a certification in a day (if he's motivated), so it may have been in progress. You will then be able to state that you made a good faith effort to make a fair decision.

Theresa Gegen TX · December 2001

There are several cases that I have recently looked at that said an employee on FMLA could be terminated. These cases involved an employee who was on the road to termination (had been displined numerous times), then messed up one more time, then went on FMLA and was terminated.

One case is Patterson v. Alltell Info. Services, 919 F Supp 500 (D. Me. 1996)
Also Beno v. United Tele. Co., 1 F.Supp.2d 867 (Md. Fla. 1997).

There are several others, but the key is: how strong is your proof that the decision was made (any documents, witnesses to when she was told). I could see the employee claiming that she was never told and suing for an FMLA violation.

I would run your specific facts and evidence before a lawyer to make sure you feel comfortable with handling her situation.

Good Luck

FMLA after dismissal

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