Recovering Lost Wages Caused by Emotional Distress under the Family Medical Leave Act

Imagine you finally get enough leave at work to take a week. You have been working nearly two years and finally, you managed to save enough leave to take a vacation. You struggle with the idea of taking a vacation, knowing that there isn't a lot there but decide your worth it.

Now imagine a few weeks after getting back from your vacation that your father has a heart attack and you need a day or two to be there for your family. Again you struggle with taking a day off, knowing that your using every bit of leave you have for this, but you need to be there.

Then a few months later, when you have hardly any leave left your child is diagnosed with cancer. You are the insurance provider and you need to keep your job. Your child cries because she wants you there to care for her through surgery and/or treatments.

This is the scenario I faced back in October 2006 when Baby Girl was diagnosed with Chondrosarcoma, a rare bone cancer. I was devastated. I knew my job was protected under the Family Medical Leave Act, but most people do not realize that type of leave is NOT paid. All that leave does is protect your job when you come back.

I was fortunate that co-workers pitched in and donated a week at a time for me to be off. They came together and any leave I needed was covered. I used every hour I had been given. I had to come back to work before Baby Girl was ready for me to go back. I would have faced time off without pay if I had stayed home.

Maybe the circumstance is different. Maybe you want time off to care for your new child, or maybe you want time to care for an elderly parent.

Every day I meet people who face this dilemma. Should they work and leave their loved one to suffer without them, or do they have enough leave saved up, or (and often this happens as well) they just take unpaid leave and get behind in their bills.

That may soon change. Congress has been made aware of this dire issue and will possibly make legislation that forces employers to pay for Family Medical Leave. I feel strongly that this bill NEEDS to be passed!! There are too many families that face this dire consequence.

The companies in America are holding this legislation back. They are against it. We all know the control that companies who have the money have in our congress. DO NOT LET THIS BILL GET REJECTED! Contact your local Congressman and Senator and let them know how strongly you feel about this bill getting passed.

Do it for me.

Do it for my daughter.

If not for us, DO IT FOR YOURSELVES. You never know if you may need it in the future.

Could you leave your daughter home when she looks like this?

I had no choice.

Lets change that for the next parent who has to face this.

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(1) Learn your employer's applicable policies, and follow them.

You should review the employer's policies that relate to medical issues. These policies usually include:

- Attendance and sick leave policies;

- Family and Medical Leave Act (FMLA) policies;

- Short term disability (STD) and long term disability (LTD) policies; and

- Discrimination and complaint policies.

For example, if you want to take medical leave for surgery, you may qualify for FMLA leave. Your employer will likely have an FMLA policy, and preferred FMLA formwork. You should use the employer's forms, and follow its policies.

If you have problems with another employee because of your medical condition, you should check if the employer has a policy concerning discrimination or employee complaints. For instance, your employer may have a disability discrimination policy that tells you what to do if someone is harassing you because of your medical condition. The policy may tell you a specific department and phone number to call.

If you decide to take a particular action (e.g. request medical leave or make an internal complaint), it is important you follow the employer's policies. Even if you think following a policy will not help you, it can help you later to show you took all the steps your employer's policy said you should take.

(2) Assist your doctor with employment requirements.

Often, it is necessary that your doctor will have to complete formwork, write letters, or fulfill other requirements for your employer.

It is important you inform your doctor of all such requirements, and give as much advance notice as possible.

Also, if you can assist your doctor with any employment requirements, you should offer to do so. For example, you may be able to complete non-medical information on a form-such as name, address, etc.- and save your doctor time by completing this information yourself. If you assist in ways like this, your doctor may be able to complete requirements more quickly and efficiently.

However, you should never replace your doctor's opinion with your own, or submit medical formwork that your doctor has not reviewed. The objective is to make yourself available to help your doctor, and reduce your doctor's burdens if possible.

(3) If your doctor writes a letter to your employer, consider including the types of information below.

Often, it becomes necessary for a doctor to write an employer about a patient's medical condition, and the need for "accommodations" such as medical leave and/or work restrictions.

If your doctor writes a letter to your employer, there are important things your doctor and you should consider including in the letter. These things include:

a. Your diagnosis/medical condition.

If you are comfortable informing your employer what your medical condition is, that information can be helpful in getting the employer to understand your need for accommodations. For example, if an employer is informed an employee has a herniated disk, then the employer is more likely to understand why medical leave for surgery is needed.

b. How your diagnosis limits your major life activities.

If your condition limits major life activities, the letter could briefly describe that to the employer. For example, a letter may state "Because of Ms. Smith's back condition and pain, she is unable to walk long distances, cannot garden, and cannot lift many objects in her home or do many routine house tasks.

c. How your condition affects your work.

If your medical condition affects your work, the letter can tell the employer how. For example, a letter may state "Mr. Jones' diabetes affects his work because it increases the number of breaks he must take, and reduces the amount of time he can work while standing up."

d. What restrictions/accommodations you need for work.

If your medical condition requires work restrictions/accommodations, the letter should describe exactly what accommodations are required. For example, a letter may state "Because of Ms. Smith's back condition and pain, for two weeks she must be restricted from lifting objects over 10 pounds at work."

e. The date you will begin medical leave, and the date you are returning to work (if possible).

If your doctor is requesting you take medical leave, it is important to give dates for the medical leave, if possible. If you and your doctor cannot give precise dates, the letter should give the most detailed description possible.

For example, a letter may state, "Mr. Jones will need leave from work beginning December 12, 2008 (a day before his surgery), and ending on approximately December 26, 2008. It is possible his leave will be longer. If that is the case, I will notify you as soon as possible. Leaves for surgery of this type usually last between one and four weeks."

If you and your doctor are not certain what date you will return to work, then the letter should state the date you will next be evaluated. For example, a letter may state, "Mr. Jones will need leave from work beginning December 12, 2008 (a day before his surgery). It is not yet known when his leave may end. His next appointment will be on December 21, 2008. At that time, his possible return-to-work date will be evaluated, and I will contact you shortly after the appointment with an update."

As these examples show, it is important the letter gives as much detail about leave as possible. If the letter is too indefinite or open-ended, then the employer may make the wrong conclusions, such as thinking you will be on leave or have restrictions for much longer than your doctor actually anticipates.

f. You are willing to discuss any concerns or requests.

It is important the letter indicates that you and your doctor are willing to communicate with the employer about any concerns or requests.

If a letter from your doctor includes the types of information above, it will help reduce the risk of employment problems down the road. However, sometimes problems still occur, despite your best efforts.

4. If problems arise with your employer, do not react with angry or righteous behavior.

Sometimes, a problem will arise that appears related to your medical condition. For example, an employee may have years of good performance reviews, have surgery, and then receive a negative review (her first) just after the surgery. It is natural for an employee in this circumstance to suspect her medical condition was the real reason for the negative review, and to be hurt and upset about this.

However, when an employer does something negative, it is important you do not react negatively. Some employees who have been wronged will react with angry or righteous behavior, and say or do something that makes things worse.

In whatever way you choose to respond to an employer's negative conduct- by making a complaint, looking for a new job, or trying to work with the employer and improve in criticized areas- it is important you remain positive. You should look to effectively solve problems rather than dwell on how you have been wronged.

5. If you wish to contact or complain to your employer about problems at work, you should first consider several factors.

Before you decide to notify your employer they did something wrong, you should carefully consider several factors.

- Consider whether the employer may retaliate. There are laws that prohibit retaliation, but that does not mean the employer will not retaliate. You should consider the temperament of the employer personnel involved with your situation. If those persons are usually fair-minded, then the chances are better they will respond to a complaint fairly and open-mindedly. If those persons typically react angrily to employee concerns, then the risk of retaliation is higher, and you should take that into account when considering the pros and cons of complaining.

- Seek advice from a knowledgeable source. You could speak to a union representative, an attorney, and/or a trusted former employee who has successfully responded to similar situations. Take their advice into account, and consider the pros and cons of different options, before you act.

- As mentioned above, check the employer's policies, to see if they identify people to talk to, and proper procedures to follow. If you decide to make an internal complaint, make sure you contact the people the policy designates, and follow the appropriate procedures.

- Do not discuss your problems with employees you do not need to communicate with. Unless an employee is someone who needs to know about your medical issues (e.g. an HR rep you need to contact to appeal a medical leave denial), there is no reason to discuss your concerns with that employee. Even coworkers who are friends can inadvertently spread your information in a harmful way. People will talk more than you think: be careful.

- When you communicate with the employer (i.e. with the appropriate representative), use language that is factual and positive. If you communicate with any employer personnel about your concerns, you should talk to them politely, stick to the facts, and communicate with them in a positive and professional manner (even if they do not do these things). Think about who your audience is, and how they may react. If the employer representative acts angrily toward you, do not take the bait. Do not "tell off" that person, or raise your voice: doing this may lose your job, no matter how right you are. The way you communicate is just as important, or more so, than the content of what you communicate.

- Be sure you communicate your concerns in writing (in addition to any spoken complaints). If you decide to inform your employer about problems at work, it is important you do so in writing.

It is fine to communicate concerns in person or over the phone. However, it is important your concerns also be stated in writing. You may later need proof that you communicated your concerns to your employer. The employer's recollections of spoken conversations may be very different than your recollections. For this reason and others, it is important that your major concerns are not just spoken, but are also communicated in writing.

Once you have decided on the appropriate information to write, you should send the employer an email or other document (e.g. fax, certified letter). The document should be sent to the appropriate person(s) named in the employer's policies, to your immediate supervisor, and to an HR rep.

Your written/emailed communications should be as natural as possible. For example, if you typically email your supervisor about issues in the office, then it may be best to email the supervisor (rather than sending a certified letter) about work problems relating to your medical condition.

6. Document, and save documentation.

Be sure to document all interactions and problems you have at work that relate to your medical condition. You should keep a journal with dates, descriptions of the issues that occurred (including negative actions or statements made against you), and the names of the employees involved.

Also, you should keep copies of all documents that relate to your medical condition and problems at work. For example, you should keep copies of doctor's letters and forms, employer's letters, performance reviews, disciplinary documents, and emails that concern your medical condition or problems at work.

Conclusion

Hopefully, you will never experience problems with your employer, and the employer will reasonably work through medical issues with you. An ideal employment relationship involves trust and good faith on both sides. One way you can enhance the employment relationship is to follow the employer's policies, and communicate your needs in a reasonable and positive manner.

If problems arise, you should continue following the employer's policies and acting in a positive manner. However, you should also take the additional precautions above, and work with your doctor and others to protect your best interests. There is no guarantee you can prevent an employer from taking unfair actions against you, but the measures above will help reduce the risk of unfair treatment, and increase your chances of successfully addressing problems.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.  

As much as I hate jumping on the it's-a misogynist-world-after-all band wagon, a recent study shows that women face serious job discrimination in their child-bearing years.

The BBC reported on a new UK study's findings:

And 76% of managers admitted that they would not hire a new recruit if they knew they were going to fall pregnant within six months of starting the job...

About 52% of those surveyed said that they considered the chances of a candidate getting pregnant taking into account age and whether they have just got married...

Other findings included only 5% employing someone knowing they were pregnant with 86% saying they would feel "cheated" if someone announced their pregnancy weeks after joining a firm.

The UK offers paid maternity leave, so pregnancy is arguably, more supported by their society than ours. And look at their study results. In fact, most nations mandate it per a 2004 Harvard Study

To put it another way, out of 168 nations in a Harvard University study last year, 163 had some form of paid maternity leave, leaving the United States in the company of Lesotho, Papua New Guinea and Swaziland.

In the US, California was the first state to legislate paid maternity leave, followed by Washington state. New Jersey if finalizing its own bill. However, most American women can only rely on the Family Medical Leave Act. In an interview with USA Today, Debra Ness of the National Partnership of Women and Families commented that

"The top 20 most economically competitive countries in the world have all figured out how to do it," says Ness. "But not the United States."

She points out that an estimated 40 percent of the work force is not even eligible for FMLA protection, because there have to be more than 50 employees in a workplace and an employee has to have been there for at least a year

A final note: In the United States women reported 5587 cases in 2007, which is a 14% INCREASE in instances of discrimination in 2006 and a 40% INCREASE compared to 1997. These are just the REPORTED cases of discrimination.

Given the above findings, is being upfront in a job interview about planning to get pregnant or being pregnant really the only option as Christine Hassler suggests in her Huffington Post column?

The second webinar, open to the public, will be focused on the three major leave laws. Family Medical Leave Act, Americans with Disabilities Act, and Workers Compensation. Presented by Brenda Sabin, it will cover the specifics of each law, compare the regulations for each, and review how they interact using specific examples.  Keep checking back for information on how to register for this event, I will be posting more information in the next few days as it becomes available.

First thing next monring I was there all right. Just before I left to go to HR, our boss told me she didn't want me to go as "I really can't spare you." Now after not hardly sleeping, and especially after talking to most of my siblings and my dad, I wasn't in the mood for shit. [It's moments like those that I come the closest to actually believing in G*d because if it were up to me at that second, I'd do something irrational and totally unexpected. But 'something' always manages to take the 30-06 from my liquidy hands within my head and returns it to the gun case in the NRA's closet. ] My visit to Human Resources revealed that my boss didn't have shit to say or do with the decision of my being able to leave. I could go - it was as simple as that. What was transpiring and what did transpire falls under the Family Medical Leave Act. As the head of HR said to me (with the door shut), my boss - 'she has shit to say about it.' That's the deal-breaker, as the saying goes. So an FYI for many folks.

I got home on Tuesday, and my mother died on Friday, the day after my nephew's 13th birthday, which no one remembered (except him) until we were at the funeral home two days later. I don't really want to say too much about my mom. This isn't the forum for airing clean or dirty laundry, discussing this or that. None of us realized how hard it must have been for her until we were grown and had kids of our own. I remember once when I called my sister to see how my very youngest nephew (now 11) was doing; he was about 10 months old. She told me she was about ready to trade him for a milk shake. He had gotten into the cupboards within his reach while she was upstairs - and - wellll you know the rest. He was happy; she wasn't.

The first year following my mom's death, I was agitated as hell beginning the end of December and it didn't strike me until mid-January as to why. It's been seven years and it's a bit easier but it did manifest as not blogging for a bit for damn sure.

An aside is the nephew whose birthday we missed when he was 13; he's off to Wisconsin to be a missionary. Poor thing. His mother, my sister, married an asshole of a pig who happened to be Mormon. I've commented before on him. The day before Matt left we were at lunch at Red Robin and he said the longest he's ever been away from home was 5 days. Well, Matty - this is longer....