Legal Question in Medical Leave in New Mexico

Fired after FMLA

My son was out on FMLA for about 4 weeks. When he received the appropriate paperwork saying he could return to work, the employer denied him a week and told him to return the following week. He also told him he was in trouble about somethings involving mandatory overtime that occured (or did not occur?) prior to going on FMLA. He returned Wednesday, but was yelled at for not being alert enough due to meds and the company sent him home. Today (the third day of work) he called to say he would be a few minutes late. He was fired. It just seems to me that they were looking for a reason to get rid of him and, unfortunately, the meds which made him a bit sleepy, may have given the company the ammunition they needed. Still - it doesn't seem ''okay'' that they could fire him in this manner. Am I wrong?


Asked on 9/21/07, 9:34 am

1 Answer from Attorneys
James R. Becker, Jr. Becker Law Firm

Re: Fired after FMLA

There are at least a couple of issues in your posting which may require some more follow-up with an experienced labor and employment law attorney. Initially, under the federal law, once the employee is cleared to return to work by the employee's doctor, then the employer must return the employee to work. Generally, there are only very limited reasons for a permissible delay. The next issue is the possibility of retaliation for his exercising his rights under the FMLA. It is unlawful for an employer to terminate this employee who took FMLA leave, for an offense which is not terminable if someone else does it.

Additionally, your son may have rights under state laws which are greater than those provided by federal laws. Because of this, your son should consult with an employment law attorney in your state to discuss his situation.

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Answered on 9/24/07, 1:16 pm


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