Being Fired Under FMLA Over Alleged Job Performance Issues

**wstaples** · 06-30-2008, 09:59 AM

My question involves labor and employment law for the state of: Texas

My wife has had some health issues that started back in March of 2008. She worked as much as she could until May14th, when she was put in the hospital for 3 days. Her doctor would not release her back to work for another week or 2 and did do the appropriate paperwork for FMLA that my wife's company provided to cover the hospital stay and the time following.

She went back to work, but then ended up in the hospital again for another 5 days in the beginning of June. Her doctor once again did the FMLA paperwork this time for the stay and a week after the stay and then filled in more FMLA paperwork stating she could work half day at the office and half day at home with the home being if the company would allow it, which they did not, for the following 2 weeks.

She went back to work again, working half days, but then ended up in the hospital again, hopefully for the last time, for 4 days. Her doctor once again did the paperwork to cover the hospital stay and was confident that she did not need additional full days off of work this time, but modified the FMLA paperwork for going back to work stating she could work between 16 and 40 hours of work depending on how she is doing.

She went back to work again and managed 2 or 3 full days of work. On this last Friday, they had a team building event of bowling and she asked if she could stay at the office and work because she probably could not bowl anyways and she had a lot of work to catch up on. She was told no, she had to go bowling. She went and was originally going to just watch, but was talked into bowling for someone who was running late due to attending a funeral. Well, unrelated to her health issues, she ended up slipping and getting a bad contusion just below her right knee. Fortunately, despite what it looked like, it was not broken, but she was put on crutches. We also got some bad news on Sunday, which was her grandfather, more like her dad though, was in ICU with a burst aneurysm and was too weak for surgery. Also, her grandmother is on hospice and is not doing well either.

She went to work today and mentioned that she might have to take some bereavement time soon. Her boss told her that she may not have a job tomorrow for not fulfilling her job responsibilities when prior to the health issues, she was the one on her team that always had her job done despite having more clients by a long shot than any of her coworkers.

On a side note, she has not received a paycheck for this payday and they are trying to say that she owes them money despite her working a full 2 to 3 days on the last pay cycle.

**LawResearcherMissy** · 07-02-2008, 03:44 AM

What is your legal question?

Are you asking if they can fire her at all? Yes. They can fire her because it's a day ending in Y - Texas is an at-will employment state.

Are you asking if FMLA protects her from being fired? It only protects her from being fired for being ill. It does not protect her from being fired for not performing her job duties well.

**wstaples** · 07-02-2008, 07:09 AM

I was asking more of the second question in the respects to being protected under FMLA. I mean if she is performing her duties, but not able to get to them all due to only working 16 hours a week which is what the FMLA paperwork says, I would think that should not be able to be held against her. *shrugs*

Now, I could see it if she was going to work and goofing off and not doing her job, but that is not the case here.

**VickiVM** · 07-04-2008, 08:38 AM

Does her company allow for Intermittent FMLA (where she is on protected leave and can work off and on until she is released for full duty)? Also, did her doctor specify which kind of activities that she could not participate in - was bowling a kind of activity that was restricted?

**wstaples** · 07-07-2008, 06:19 AM

I know that they asked for the FMLA paperwork, and they have accepted it as the doctor wrote it.

As to activities, no, I do not remember the doctor putting a limit on her activities. I do not hold the company at fault for the bowling accident as much as my wife though. While her boss did say she had to be there, her boss did not say she had to bowl.

**Mr. Knowitall** · 07-07-2008, 06:56 AM

Quoting wstaples

Her boss told her that she may not have a job tomorrow for not fulfilling her job responsibilities when prior to the health issues, she was the one on her team that always had her job done despite having more clients by a long shot than any of her coworkers.

It's been a week - does she still have a job? Is she now fulfilling her job duties or, if not, has she documented through her doctor why she is disabled from completing the disputed duties?

**wstaples** · 07-07-2008, 01:48 PM

Quoting Mr. Knowitall

It's been a week - does she still have a job? Is she now fulfilling her job duties or, if not, has she documented through her doctor why she is disabled from completing the disputed duties?

She does currently have a job, but it is my understanding that she will not by the end of the day.

She was doing what she did prior to getting sick, just not as much of it in the respects that you cannot do a 40 hours worth of work in 16 hours. That is impossible, unreasonable, etc.

Yes, the doctor has things documented, but I am afraid that no matter what, the company is going to find a way of laying her off regardless of FMLA. It is a difficult situation.