Ask The Lawyer By: Daniel A. Gwinn, Esq – Time Off While Suspended?


QUESTION:  A couple of weeks ago I was placed on disciplinary suspension, pending an investigation. I’ve been told these investigations often take two months or more to complete, so I decided to schedule some long-overdue and necessary surgery that I have been putting off due to the long recovery time. I filled out a request for leave under the Family and Medical Leave Act; my request was denied without any explanation. I figure my recovery period might last as long or longer than my suspension, so it’s a good way to use my time off — I’m positive the investigation will clear me of any wrongdoing. Shouldn’t they consider my request?

ANSWER:     First things first: Would you be eligible for leave under the Family and Medical Leave Act, even if you weren’t on disciplinary suspension? The 1993 law that requires employers to give workers up to 12 weeks of unpaid leave for a “serious health condition” or pregnancy is not available to everyone.

To be covered by the act, private-sector businesses and organizations must employ at least 50 people for at least 20 work weeks “in the current or preceding calendar year.” If the company you work for doesn’t employ at least 50 people, it’s not covered, and you won’t be FMLA eligible.

Next, you have to meet your own set of eligibility requirements. You must have worked at least 1,250 hours in the 12 months before the start of the leave, you must have worked for the employer for at least 12 months (the months do not have to be consecutive), and you must work at a location in which 50 or more employers work, or within a 75-mile radius of that location. And, of course, you must suffer a “serious health condition,” as defined by the FMLA: “[A]n illness, injury, impairment, or physical or mental condition that involves … in patient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.” Surgery that is necessary to your health, without which you will be unable to perform the essential functions of your job, and recovery from that surgery are generally covered. Finally, you must still have leave time available to use. If you used up all 12 weeks of your FMLA allotment earlier, you are out of luck, no matter how necessary the surgery.

Assuming you met all the eligibility criteria, your employer’s was wrong to deny your FMLA request, even though you are currently on disciplinary suspension, and you should be allowed to use the disciplinary suspension time as FMLA.

But you will have no action against your employer for what’s known as “FMLA interference,” unless you can show that “the employer’s violation caused you harm,” Ragsdale v. Wolverine World Wide, Inc., 535 US 81 (2002). Even if you receive FMLA time off, you might not be entitled to the FMLA’s job-protection guarantee. Employees who take time off under the FMLA must generally be allowed to return to the position they held before taking leave – as long as they can show that their job would have been available even if they had not taken leave. “[A]n employee who requests FMLA leave has no greater protection against termination of his employment for reasons unrelated to his FMLA request, than he did before submitting that request.” Allen v. City of Sturgis, 559 F Supp 2d 837,850 (WD Mich 2008) A worker who was scheduled for a layoff cannot protect his or her job by putting in for FMLA. And, workers who were going to be terminated for misconduct cannot save their jobs by taking FMLA leave.

Bottom line: While your employer should grant your FMLA request if you are eligible, you will not be entitled to job protection if the investigation substantiates the misconduct that led to your suspension. If you were going to be fired before you put in for FMLA, the law won’t protect you. If you are exonerated by the investigation – and weren’t otherwise in hot water – it could be a different story.

To determine if you have any legal remedies, you should probably talk to an attorney.

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By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
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