I am on FMLA leave from my job, and I don't want to go back. Can I still get a severance?

It's common occurrence.  Maybe you just had a baby, and took some unpaid leave.  Maybe a family member got sick, and you needed some time off.  Maybe you got sick yourself, and had to miss work for a number of weeks.  In any case, right now you aren't going to work, but under the FMLA, or Family Medical Leave Act, your employer is holding your job open for you when you get back from leave. 

Except you don't want to go back.  Maybe you decided that you want to be a stay-at-home dad or a stay-at-home mom.  Maybe you found a new job that is more flexible, and will let you care for your sick relative long-term.  Maybe you have decided to go into business for yourself.  In any case, while you were on FMLA leave, you've made up your mind that you did not want your old job back.

Before you tell your old employer about your new plans, you should decide whether you want to negotiate a severance, and, if so, you should give careful thought to what you tell your employer, and when.

As we have discussed in previous posts, one simple question is ask yourself is this:  What are all the things your disliked about your old job?  Because some of the reasons why you don't want your old job back might be the basis for negotiating a severance:  

  • Did your old company ever fail to pay you, or take a cut of your commissions, or "forget" to pay you for overtime, or promise a bonus but not follow through? 
  • Did your old boss or co-workers ever say or do anything that made you uncomfortable for being who you are?  Was there someone at work who sometimes harassed you, or bullied you, or made remarks that just were not okay?
  • Did your old company make it hard to take family medical leave?
  • Did your old company refuse to accommodate you when you got sick?
  • Was your old company open to people of all backgrounds, races, religions, and sexualities?

If any of these situations rings true, you might have a legal claim against your old employer.  Your employer likely would be interested in avoiding even the possibility of a lawsuit, and so might be willing to negotiate a separation agreement with you, even though you are on FMLA leave.  In that separation or severance agreement, you would promise never to sue your company for anything that happened during your employment, and your company would pay you a severance.

Even if your old company was totally upstanding—respectful, accommodating, and fully professional—you may still be able to negotiate a severance while on FMLA leave.  For example, many companies ask departing employees to sign "separation agreements," in which the former employee promises not to compete for their old employer's clients or customers, or not to disclose their former employer's trade secrets or proprietary information.  If your former employer wants to control your future behavior, they should pay you for that, even though you are on FMLA leave.

Many employers shy away from firing anyone who has recently returned from FMLA leave.  Simply put, the employer does not want to appear to be punishing its employees for having exercised their rights to family medical leave.  What this means is that, if you are on FMLA leave and you know you do not want to return to your job, you have leverage that can be used to negotiate a severance.

If you are on medical leave from a job you don't want to return to, and if you want advice on how to negotiate your departure, Granovsky & Sundaresh is here to help.  Call or e-mail us any time.

FMLA Notice Requirements

What are the FMLA notice requirements? In other words, what kind of notice do you have to give for FMLA leave? Assuming you are an eligible employee under the FMLA, the below article addresses what notification is sufficient

FMLA Notice Requirements - Leave is Foreseeable

If the your need for FMLA leave is foreseeable (e.g birth of a child, scheduled surgery, etc.) you are required to provide your employer with at least thirty days advanced notification before the leave is scheduled to begin. Moreover, you should do so in writing – and keep a copy for yourself.

Is the leave foreseeable or not?

FMLA Notice Requirements - Leave is Unforeseeable

Not all leave is foreseeable. Emergencies happen which require a person to go on leave without prior notice. When this happens, notice must be given as soon as practicable. There are no hard and fast rules with respect to what “as soon as practicable” means, you should make a good faith effort to let your employer know about your need for leave as soon as you can. Obviously, with medical emergencies, advanced notice is not required as it is impossible to provide advanced notice during an emergency.

When the leave is foreseeable (like pregnancy, scheduled surgery, etc.), the employee should provide at 30-days’ advanced notice.

FMLA Notice Requirements - What should the notice say?

You should also provide your employer with information when you provide notice of your need for leave. You must, at a minimum, tell your employer that you need FMLA leave, when you will need it, and how long you would need it for. The best way to handle this, though, is to provide your employer with a written notification indicating why you need leave and how much leave you need. Your request for leave does not have to specifically reference the FMLA or assert your rights under the FMLA

Can my employer look into my medical condition?

When the leave is for you (as opposed to a family member), your employer is allowed to look into the nature of your health condition and may request a medical certification from your health care provider to justify the need for leave. If your employer asks for your information related to your leave, you are required to respond.

If you have questions or concerns, please contact us for a consultation.

NY FMLA Lawyers

NY FMLA Lawyers

What can my employer do during my FMLA leave?

Our New York Employment Lawyers are regularly asked about what an employer can do when an employee is on FMLA leave.  Here are some points to consider: Your employer can make you use your paid time off.  Your employer may require you to take paid leave concurrently with their unpaid FMLA leave.  This may include vacation time, paid personal leave, and paid sick and medical leave.  The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your paid time off for the intermittent leave, you should be entitled to use it like anyone else.

Your employer may communicate with your health care provider to get information required by the FMLA certification form.  Employers are prohibited from asking for information other than what is required by the certification form.  If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue.

Your employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

Your employer is not allowed to use your FMLA leave against you.  The employer cannot write you up for poor attendance, give you poor performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave.

Our New York Employment Lawyers handle FMLA and related cases from start to finish.  If you have any questions, please contact us.  All e-mails are answered by an attorney within 24 hours.

Family and Medical Leave Act

If covered by the Family and Medical Leave Act (FMLA), an employee is entitled to twelve weeks of unpaid leave for any of the following reasons:

  • serious health condition of a spouse, child or parent;
  • employee’s own serious health condition; or
  • birth, adoption or foster care of a child.

To be eligible for the FMLA, the employer must employ at least fifty (50) people, and the employee must have been employed by the employer for the past twelve months and worked at least 1,250 hours within the past twelve months. 

It is legal for an employer to require that employees use up vacation/personal/sick time as part of the 12 weeks of leave.  However, once the employee returns from leave, he or she must be returned to his or her prior position or an equivalent position.

It is illegal for your employer to interfere with your right to take FMLA leave, to force you to work during your leave, or to retaliate against you for taking FMLA leave.

If you have any questions about your right to medical leave in New York, New Jersey or Ohio, or the Family and Medical Leave Act in general, please contact us for a free initial consultation.

FMLA Notice -- What is Enough?

How much notice is enough under the FMLA? In Lichtenstein v. University of Pittsburgh Medical Center, plaintiff Jamie Lichtenstein was employed as a psychiatric technician with a spotty attendance record.  While Lichtenstein was on notice of her attendance issues, she called her supervisor prior to a scheduled shift and stated:

“Currently in the emergency room . . . my mother had been brought into the hospital via ambulance, and I am unable to work today.”

The supervisor taking the call simply noted in the attendance log, "sick mom."  Four days later, Lichtenstein’s employment was terminated.

Interestingly, the Court found that by notifying the employer that her mother was in the emergency room, Lichtenstein did not provide enough information for her employer to conclude that she needed leave under the FMLA.

Nevertheless, the Court also held that the employee had given the employer enough information to conclude that the FMLA may be in play.  As a result, the employer had an obligation to conduct a further inquiry to determine whether FMLA leave was necessary.  Because it did not, and because it shortly thereafter terminated the employee, it raised an inference that the employer took the action so as to interfere with Lichtenstein's FMLA rights.

The Lichtenstein case follows a growing line of cases that seems to put the onus on employers to ask the questions necessary to determine whether the FMLA is applicable.  Surely the lesson for employers is that they have to keep in touch with employees to communicate the timing and duration of his or her absence.  Employees are not required to specifically state "FMLA" as a reason for their absence.  Rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play, and to inquire further if there is any ambiguity in the leave request.  When there is doubt, ask the questions.  And if you need help, contact us.