You have many questions about your rights and your legal options for protecting and asserting them. At Blanchard & Walker, we have the answers you are looking for and a track record of achieving results for employees in Ann Arbor and throughout Michigan.
Here are some answers to some of the most frequently asked employment law questions.
“Can I be fired for taking medical leave?”
If you work for a company with 50 or more employees, and you have been employed for at least 12 months, you may be eligible to take up to 12 weeks of protected time off under the Family and Medical Leave Act (“FMLA”). This does not entitle you to paid leave, but it does entitle you to job protection and continuation of benefits while you are on leave. You have a right to be free of retaliation for using FMLA leave, which means that you cannot be fired for exercising your FMLA rights. If you are not eligible for FMLA leave, you may still have the right to take medical leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”) or the Michigan Persons with Disabilities Civil Rights Act (“PDCRA”), depending on the circumstances of your situation and whether it poses undue hardship for your employer.
“Can my employer legally terminate me from my job?”
Yes, your employer can likely terminate your position for legal reasons, especially if you are an “at-will” employee. However, there are illegal reasons for termination as well, including discrimination and retaliation. An experienced employment law attorney can examine your circumstances and inform you of you legal options.
If you have a serious health condition that is impacting your job, you may be entitled to reasonable accommodations under theAmericans with Disabilities Act (“ADA”) or the Michigan Persons with Disabilities Civil Rights Act (“PDCRA”). Reasonable accommodations may include part-time or flex-time schedules, modifying office furniture or equipment, relocating the employee’s workspace (including work-from-home arrangements), job reassignment, short-term leave, and many other things. Employers are not required to provide accommodations that pose an undue hardship. Accommodations must be considered on a case-by-case basis, and the employer is required to engage in an interactive process with the employee to determine how best to accommodate.
“What is ‘at-will’ employment?”
“At-will” describes the legal nature of your employment. It means an employer at any time for any reason –except illegal reasons such as gender, age, race, disability, whistleblowing, etc. –without breaking the law. The flipside is that you are also freeto leave your job at any time without facing legal consequences.
“Can I be asked about my health history during a job interview?”
No. According to the Americans with Disabilities Act (“ADA”), employers are not permitted to make pre-employment inquiriesabout the existence of a disability or the nature or severity of a disability. This applies even if the disability is obvious or if the applicant volunteers information about the disability. Furthermore, an employer may not ask a job applicant to take amedical examination before making a job offer. However, they may ask questions about the prospective employee’s ability to perform specific job functions. Employers may condition a job offer on the satisfactory result of a post-offer medical examination, but only if this is required of all entering employees.
“What can I recover in a lawsuit?”
The potential damages from an employment lawsuit will be based on the damages you have suffered due to an employer’s illegal actions. Lost wages are most commonly awarded in a wrongful termination lawsuit. Damages also can include past and future lost wages as well as the pain and suffering you experienced as a result of their wrongful actions. In certain cases, other penalties may apply. The remedies available will always depend on the specific circumstances and the type of violation alleged.
“Can my employer demote me for taking FMLA leave?”
No. The Family and Medical Leave Act (FMLA) provides employees with up to 12 weeks of unpaid leave for qualifying reasons. Your job is protected during this time off and you cannot be demoted as retaliation for taking FMLA leave.
“My employer wants me to submit to an independent medical exam. Can I be required to do this?”
It depends on the reason for the request.The Americans with Disabilities Act (“ADA”) requires that all medical examinations or inquiries must be job-related and consistent with business necessity.For instance, employers are permitted to make medical examinations or inquiries where there is evidence ofa job performance or safety problem.Also, employers are permitted to make medical examinations or inquiries in order to assess whether an employee needs an accommodation.If the employee provides insufficient documentation from his or her treating physician, the employer may in some instances require that the employee submit to an independent medical exam.
“Will their non-compete agreement hold up in court?
It depends on the terms of the non-compete agreement and the circumstances of your employment among other factors. Sometimes employers will bluster about suing over a non-compete, while others actually take legal action against past employees. A knowledgeable employment attorney can review your non-compete and inform you of your rights and obligations.