California FMLA Protections Kick In as Soon as You Request It

California FMLA protections (short for Family Medical Leave Act, which is in fact a federal program) are in place as soon as you request that leave. Los Angeles FMLA lawyers point this out because some companies have been ensnared in litigation in employment lawsuits filed by employees who say their bosses tried to dissuade them from taking this leave. This is an extremely unwise move from the company’s perspective because once those FMLA protections kick in, it’s possible the company will be vulnerable to liability if they try to talk an employee out of taking leave to which they are entitled. 

This is allegedly what happened at a well-known grocery store where an employee was reportedly told to “suck it up” after she requested FMLA leave. In Bartman v. Wegmens Food Markets Inc., plaintiff says she sought leave for anxiety and chronic depression. Yet when she did so, her manager allegedly told her to “suck it up” and berated her for “being a burden” to the rest of the staff in the kitchen.

Our Los Angeles FMLA attorneys understand beyond that, plaintiff was reportedly singled out and harassed by her boss at work, leading to her condition worsening, a greater need for leave and then further harassment. Ultimately, she says she was wrongfully terminated for chronic lateness, tardiness and failure to follow the call-in procedures for calling in sick. Had she not first requested FMLA before all this, termination may well have been justified. But the fact that she requested this leave for her own health and was told by her boss she should not take it means she has a stronger case for employer FMLA violations. 

What are California FMLA Protections?

FMLA is a federal benefit that guarantees workers the right to take 12 weeks off work (unpaid) for purposes of coping with a serious personal health issue that prevents them from handling essential work functions, caregiving for an immediate relative or adapting to the changes of a new baby, whom one has either birthed or adopted.

FMLA protections are outlined in Section 105 and section 825.220 of the FMLA. One of the very first of those provisions is that employers are barred from interferring with, restraining, denying the exercise of or the attempt of exercise of any FMLA right.  A boss telling a worker to “suck it up” after they have requested FMLA leave would certainly qualify, just based on the facts as outlined in the complaint.

As Los Angeles FMLA attorneys can further explain, employers are not allowed to discriminate or retaliate against workers or even prospective workers who exercise FMLA or have tried to exercise a right spelled out in FMLA. Companies cannot fire or in any way discriminate against someone who has filed for or tried to seek FMLA benefits.

Some examples of conduct that is prohibited would include:

• Declining authorization of FMLA for an employee who is eligible;
• Discouraging a worker from using FMLA;
• Tweaking a worker’s hours in order to avoid an employer’s responsibilities under FMLA;
• Using a worker’s request for or use of FMLA as a basis upon which to take adverse employment actions in hiring, promoting, discipline or termination;
• Counting leave taken under FMLA in the company’s attendance policy.

Any violation of these provisions can be actionable in a California FMLA protections lawsuit. Note that FMLA is extended to all private sector employers with 50 or more workers or 20 or more workweeks in a current or previous calendar year (these include joint employers and successors of covered employees) as well as all public agencies.

It’s important that all employers are careful to ensure their policies are reflective of the law and also that all in management positions are properly trained so that such incidents don’t occur. Because the truth of the matter is, while it might seem reasonable to respond to a worker who is “whining” with a “suck it up,” if the worker has requested FMLA, there are very specific legal protections that accompany that, and employers ignore these at their own peril.

On the flip side, if you are an employee who has been discriminated against for requesting FMLA or outright discouraged from applying for it, consider discussing your legal options in a free initial consultation with an experienced Los Angeles FMLA attorney.