Legal Question in Medical Leave in California

Termination after applying for FMLA

I'm a field technician for a telecommunications company. My supervisor gave me formal correction actions in October and December 2006 for violating company policy. On January 22 my supervisor called me during my lunch hour and I didn't answer the phone because I wasn't going to take another assignment while I was at lunch. When he talked to me about it later, I argued with him. That same day I called my dispatch department to have my supervisor assign a helper for my last job. I told them that I couldn't call him because I was mad at him. I left the job because I would have been working overtime and was not informed in advance. I herd leter that my supervisor was upset because I left my last job.

I have a medical condition that flares up sometimes when I get upset and I need to take some time off for the medication to work. I called HR the next day and told them that I needed to take some time off for a medical condition. She told me she would be sending me FMLA paperwork that would need to be filled out by my doctor. The HR manager called me the next day and told me that he needs to investigate the events of the 22nd. Can I be disciplined or fired after I applied for FMLA leave?

Asked on 2/01/07, 7:35 pm

1 Answer from Attorneys

Laurence Haines HainesLaw

Re: Termination after applying for FMLA

No, you cannot be legally disciplined or fired because you apply for or take FMLA leave.

The problem, as I see it, is that they could legitimately discipline or fire you for their perception of insubordination based on the other facts you put in your question all of which preceeded your request for FMLA leave.

Believe it or not, even if they are factually wrong about any belief that you were insubordinate, they can fire or discipline you absent a written contract or a union agreement because in California, you are an 'at-will' employee.

Having said that, they will probably leave you alone during your FMLA leave and when you return, I suggest you apologize and see if you can work it out.

Good luck.

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Answered on 2/07/07, 7:27 pm

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