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Can an employee go out on medical leave while on a PIP issued after a formal complaint?

Nokomis, FL |

Recently awarded number one sales person for 2011, my supervisor told me that my computer skills "suck". While on vacation the following week, the young man assigned to cover my position to insure that all compter data entry was kept up to date did not full fill this responsibility. Upon return from vacation, I was reprimanded for the past due status of the data base while I was out. I asked my supervisor if she was wanting me to quit and she replied "yes, I would accept". She then asked if I was quitting - I said no. Two days later under extreme stress I contacted my regional supervisor. The next day saw a doctor who has put me on anxiety medication. Three days later I was put on 30 day performance plan. Doctor is indicating I should take medical leave. Can they disallow or fire?

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Attorney answers 2

Best Answer

You should seek FMLA if your employer offers FMLA and if you have worked long enough for the company. If they then fire you or refuse your leave you may have additional legal claims. FOr a summary of your rights under the FMLA, check out our employee rights blog at or


I am a California attorney and not eligible to give legal advice in your state. My comments are for information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. If I refer to your state's laws, that only means I did a quick Internet search and found something that appeared relevant. You should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.

Your medical condition will determine whether you can go on medical leave, not your PIP. You may have rights under the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) or the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA), or your state's similar laws, or your state's workers' compensation laws.

Please look at my Avvo guide on the ADA:

Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA):

The best way to figure out your rights and how to enforce them without losing your job, and to discuss strategy, is to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is, and you can search for attorneys by location and practice area.

Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.

I hope you can resolve your situation and wish you the best.

*** 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. ***