I tore a muscle in my back while working out,went to the emergency room. Called in the following day, (doctors note).Week later I left work at mid day because my back pain was unbearable, went to urgent care. Doctor prescribed me 3 different strong pain killers advised me not to go to work wrote me a note for 3 days. A few days ago I found my manager wrote those absences as occurrences(an occurance per day absent, instead of 1 occurance of entire accident- I had no idea! Nor did she ever tell me about my FMLA rights. I input on my timecard some of the absences as planned sick days, and timecard was approved. Had I known she wrote my absences as occurrences I would've taken action. Since 30 days passed I was able to open an FMLA case for only 2. Where my rights violated?
First, you need to determine if you qualify for FMLA leave. You need to work for an employer that has at least 50 employees working within 75 miles of your place of work. You need to have worked for the employer for at least a year. You need to have worked at least 1,250 hours in the year prior to the need for leave. You need to have a qualifying serious medical condition. The last factor appears satisfied. If you meet the other criteria, then the employer has certain obligations toward you related to your need for medical leave.
First, the employer was required to inform you of your FMLA rights at the time you presented it with the need for leave. Second, the employer was required to inform you that your leave would be considered FMLA qualified. If the employer failed to do either, your right to FMLA leave is unaffected, but the employer cannot start counting the days against your 12 weeks of leave until they give the required notices.
If you qualify for FMLA leave you are entitled to 12 weeks of leave and a guaranteed return to work in your same or similar job, absent circumstances that would have eliminated your job in the interim that would have occurred whether or not you were on leave.
Even if you do not qualify for FMLA, you are protected under the Fair Employment and Housing Act. That law provides that is you have a temporarily disabling condition, the employer cannot retaliate against you in the form of adverse employment actions because of that qualifying condition. That the absences were categorized as occurrences has not affected you yet mean there has been no damage. However, if the employer uses those occurrences to later separate you from employment, demote you or in any way adversely affect you, then the company practice would be unlawful.
If you are not on FMLA leave and no adverse consequences have befallen you, you likely do not have a legally recognizable claim. That might change if you need more time. If it does, it would be prudent at that time to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
FMLA guarantees job protection for a serious health condition. What concerns me more is that you injured yourself while at work. You need to speak to a workers' compensation attorney. I am not sure if California has a workers' compensation retaliation act, but it sounds more like work comp retaliation than an FMLA violation. Did the company send you to the company doctor and use their work comp insurance? Call a California work comp and employment attorney immediately.
You will find my response to your question below. Please read this before you move ahead. If you believe my answer to be the "BEST ANSWER" to your question, please click the link to designate the answer as such. If you found the answer helpful, please click "Mark as Helpful." I ask this of you in order to determine if I am serving the non-attorney visitors of AVVO to the best of my ability. DISCLAIMER: This message should not be construed to be legal advise. The purpose of the message is informational only. Please note: this response does not create an attorney-client relationship. Ms. Lyne is a Florida Bar licensed attorney and practices law in Florida only.
Somehow your question ended up in the Workers Compensation Section, when it sounds like, by your comment on the prior post, that this is not a work injury. I will retag this for Labor/Employment law, in hopes you can get a better response.
DISCLAIMER The contents of this answer are for informational purposes only and are not intended to convey specific legal advice regarding any issues. Transmission of the information contained in this post or any posts linked hereto is not intended to create, and receipt does not constitute, an attorney-client relationship. Attorney Gilbert Fisher practices law only in California and does not seek to represent anyone in any other jurisdiction. Readers should not act upon the information contained in this site without first seeking the advice of an attorney licensed to practice in your area. Readers take NOTICE: Making a false or fraudulent workers' compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine. Attorney Gilbert Fisher is a debt relief agency under federal law. Attorney Gilbert Fisher helps people file for bankruptcy relief under the Bankruptcy Code.
I will only address the potential WC aspect of your case since I am not an Employment Attorney (who would have expertise in the FMLA).
You state you tore a muscle working out. I hear this from many of my police officer clients who wear a gun belt at work or fire fighter clients who perform manual labor. Often a Medical Legal evaluator will say an incident at the gym was a flare up of an underlying cumulative trauma work injury. If you do physical labor or if you do prolonged sitting, both of which cause lower back trouble, you should at least talk to a reputable WC attorney to explore if you have a viable WC claim.
FMLA and the Calif. Equivalent, CFRA only cover "serious medical conditions" or "disabilities." Also, you have to have worked for at least 1 year and at least 1250 hours in the past year and the employer must have at least 50 employees within a 50 mile radius of your workplace. If you needed just 3 days off of work, your injury may not be considered a "serious medical condition," but more facts need to be known to answer that question for you. If you did not have a serious medical condition, under the law, FMLA/CFRA would not apply to you at all.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline