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I recently got fired from my federal job for the use of my FMLA ( family medical leave act). Is this legal?

Chicago, IL |

I did not violate the terms of my fmla according to my job. My employers state that I don't meet the medical guidelines. I have worked for this employer almost nine years.

Attorney Answers 3

  1. Best answer

    As a federal government employee, you have very, very short time frames in which to file an appeal of the termination. If your medical condition meets the definition of disability in the Rehabilitation Act (which is the federal sector equivalent of the ADA), you must initiate your case within 45 days by contacting the agency's internal EEO office for counseling. Please see my Avvo guide to the EEO complaint process for federal government employees:

    You may be better off pursuing the case through an appeal with the Merit Systems Protection Board, and if your medical condition does not meet the definition of disability under the ADA, then the MSPB is your only option.

    In either instance, these are very complicated cases, both on the merits and procedurally. You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.

    Most employment attorneys do not handle cases for federal employees because the procedure is very different and many attorneys are not familiar with it. So be sure to look for attorneys who state they have experience with federal sector employees. One good thing is that you can be represented by an attorney in any state for the internal EEO or MSPB cases, and if you case goes to federal court, the same attorney can represent you on a pro hac vice basis, which means he or she is admitted to the court for that one case only, and works in conjunction with a local attorney. *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

  2. Something doesn't add up here. your question seems to indicate that you had FMLA certification, but in the very next breath you indicate that your employer s said you didn't have it.

    It is almost always illegal to retaliate against an employee for asserting his or her FMLA rights. However, as noted above, this appears to be a confused situation. You most definitely need to get into an attorney who concentrates his or her practice in the area of employment law.

    If you found this Answer to be helpful, please mark it as such. Remember, however, this is only generalized commentary on your question. It is not to be taken as legal advice. Even "in person" interviews leave attorneys with plenty of questions – the Internet makes it crazy. Thank you Chuck Watson 217.544.6165

  3. Wrongful termination in retaliation for using FMLA benefits is NOT legal. To determine your own rights to pursue a retaliation claim I urge you to contact a skilled employment attorney with experience in pursuing such claims. Most of us in the employment law arena will provide a free consultation to preliminarily assess the specific facts of your situation.

    Eligibility for FMLA benefits, as you may know, requires that an employee have worked 1250 or more hours in the past 12 months for an employer with 50 or more employees within 75 miles.

    If eligible, under the FMLA, unpaid leave must be granted for any of the following reasons:

    -- To care for the employee’s child after birth or placement for adoption or foster care; to care for the employee’s spouse, son or daughter, or parent who has a serious health condition.
    -- For a serious health condition that makes the employee unable to perform the employee’s job.
    -- To care for a spouse, child or parent, or next of kin who is a covered Service Member recovering from a serious injury or illness suffered in the line of active military duty. Additional benefits may be available for Service Members.
    -- A qualifying exigency arising out of the employee’s spouse, child, or parent’s active duty (or notification of an impending call or order to active duty) in the National Guard or Reserves in support of contingency operations.

    I hope this helps!

    John R. Malkinson/ Malkinson & Halpern, P.C.

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