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What's the employee/employer responsibility for an exempt, key employee, requesting FMLA for a skin contracture surgery?

Mobile, AL |

Ask employer for FMLA for surgery. Due to a work obligation, I ask my employer which date would be best for surgery and FMLA by e-mail (in19 days or 33 days). Employer told me verbally , surgery in 19 days in which I scheduled. I have not received anything regarding FMLA in writing from my employer (ELIGIBILITY AND RIGHTS AND RESPONSIBILITIES NOTICE REQUIREMENTS). I did email what the surgery was for, expected time of recovery and request for FMLA. Can I be fired or denied rights associated with FMLA since my employer choose the 19 days notice? Am I exempt from receiving a 5 business day eligibility, rights and responsibility notice? I've been employed for 6 years and work about 50 hours a week (called in 2x in 6 years) Employer has 250 employees.

Attorney Answers 1


An employer must give you an answer on your request for FMLA within 5 business days of your request. They may ask for clarification or verification of the need for leave. If they approve your request which you make in advance, you are protected from discrimination or retaliation which may occur even prior to when you are actually qualified to take the FMLA leave. If you employer fails to give you notice within five days then you are approved for the leave. You cannot suffer any adverse employment action as a result of requesting protected leave. If you believe that is occurring you should consult an employment attorney as soon as practical. You can find one by using the find an attorney tab here on Avvo. Most employment attorneys will give you a free initial consultation.
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Thank you, it has been 9 business days and still no written responsibilies, elibilities, rights notice from my employer. I do have a qualifying disability (Ada) that interferes with mobility, in which I was hired for. Feel employer trying to terminate due to requiring me to perform job duties not required by an employee with same job title in which adds to my physical disability. I am concerned my reconstruct my department while I am out on fmla and terminate me. I have had comments made unfairly about my disability. Do laws protect me since my employer choose the 19 day notice for fmla instead of the 30 day request? What happens if I am out longer than the allotted time for fmla since I do not know how much fmla time I have?

Randy Jay Harvey

Randy Jay Harvey


You are entitled to 12 weeks of leave and will be provided a continuation of healthcare coverage while off work. You should document dates, times, locations of statements made that are or appear to be discriminatory and provide that information to a local attorney who can walk you through all of this. You can find a local attorney on the Find an Attorney Tab.



Thanks again for your advice. I have kept very good notes, e-mails, and text messages with times and dates for a period of two years., including e-mail contacts and a documented phone call to the Corporate Office VP of Human Resources in regards to the discrimination and harassment. This corporation has not investigated or attempted to examine any information I have. Thank you again, this has been a long road for me and a hard decision to seek legal advice and pursue, but I can only tolerate so much. Since my reporting to corporate a few months ago, the situation has progressed and declined rapidly. I will seek an attorney.

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