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Can I be laid off for caring for a relative (FMLA?)

New York, NY |

After being told by my employer's HR (in NYC) I had FMLA to care for a relative, having my relative's physicians complet and ret'n their FMLA forms, weeks later they now send a letter saying they will terminate employment unless I ret'n next week In this same letter, they now claim they were 'in error' when they had originally written that I was FMLA eligible and that they graciously let me go ahead and have the time away anyway. This is supposedly an 'at will' arrangement with a large employer in NYC.

For the sake of argument, assume that some minimum amt of time had not been put in during the previous 12 mos making the employee 'ineligible' to receive this. Also that the employee decides against ret'g to work because of his/her personal committment to caring for his/her family member and his/her employment is discontinued....is there eligibility for U.I.?

Attorney Answers 3

Posted

Employers cannot retaliate against you for taking FMLA leave to care for a relative. There may also be an associational discrimination claim. I suggest speaking with an employment lawyer immediately.

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1 lawyer agrees

Posted

You need to ask what was the error. Ask them why are you not on FMLA, and discuss their reason with an attorney?

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3 comments

Asker

Posted

to paraphrase their recent mailing, they said they made an administrative error and that I wasn't elligible. I am over 40.

Arthur H. Forman

Arthur H. Forman

Posted

You are not eligible unless you are caring for a spouse, child or parent. If you are, you need to ask why you are not eligible. You also need to have worked more than one year for the company. If you have that also, then ask them why.

Asker

Posted

I was caring for such a relative and working there over a year (P/T). According to their HR letter, they erred in my favor and then having caught it decided to waive their policy re. 'unauthorized' taking of leave.

Posted

Whether or not you are eligible for FMLA leave depends on factors such as how many employees the employer employs at a location, how many hours you worked for that employer, the nature of your relative's condition, the nature of the documents submitted regarding your relative's condition, and your communications with the employer regarding the requested leave. I recommend consulting with an employment lawyer such as myself.

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1 comment

Alix R. Rubin

Alix R. Rubin

Posted

To be eligible for FMLA leave, your employer has to have at least 50 employees within a 75-mile radius and you have to have worked there for at least 12 months and at least 1,250 hours within the last year. Assuming you are truly ineligible for FMLA leave, your employer can demand that you return to work before the 12 weeks of leave expire. However, you may have a claim if you relied on your employer's error in initially granting you FMLA leave, cannot return to work because you are unable to make other arrangements to care for your relative, and you are fired for not returning.

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