Would this be wrongful termination?

[kat308]

What is the name of your state? NY

My neice was killed in a car accident yesterday morning and my brother in-law's job is pressuring him to get back to work. If they fire him can they legally do so? My brother in law works for a large company and can't tell them exactly when the funeral will be (probably by the end of the week) due to issues with the medical examiner just releasing her tonight to the funeral home and possible extensive work to be done so the will be able to hold a viewing.

 

[enjay]

Yes, they can fire him.

 

[las365]

If he is eligible to take time off under the FMLA, he should notify his employer IMMEDIATELY that he is doing so. Others here know the qualifications by heart and they'll be along, but you can google "FMLA" and you'll find basic information.

An employer is not supposed to fire or retaliate against someone for using the FMLA for time off. I think that one can be fired while on FMLA leave if the termination is for unrelated reasons.

Otherwise a termination for missing work due to your child's death isn't illegal, but it is certainly a wretchedly awful thing to do to someone.

 

[kat308]

Thanks for the responses. I'll check out FMLA.

 

[enjay]

FMLA is for the care of a family member, not for mourning. Is your BIL your niece's father? What a horrible thing for the company to do to him.

 

[las365]

It does also provide for leave for the employee:

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee's job.

and then there are definitions of what a "serious health condition" is under the Act that include:

(i) A period of incapacity (i.e., inability to work, attend school
or perform other regular daily activities due to the serious health
condition, treatment therefor, or recovery therefrom) of more than three
consecutive calendar days, and any subsequent treatment or period of
incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a
nurse or physician's assistant under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider;
or
(B) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the supervision
of the health care provider.

Would a DX of shock/depression by a doctor who states that the condition renders the man unable to work for a week or two or while he is under continuing treatment do the trick?

(I assumed from the OP that the BIL is the father of the child who died. It's hard to believe an employer would expect someone in that situation to return to work right away.)

 

[cbg]

I agree that the employer is being incredibly heartless. However, bereavement time is not required by law in any state. As indicated, FMLA is not applicable for bereavement time.

The requirements for FMLA are as follows. ALL of the critera listed below must be true or FMLA does not apply.

1.) The employer must have a minimum of 50 employees within 75 miles of the employee's location
2.) The employee must have worked a minimum of 12 months for this employer
3.) The employee must have worked no less than 1,250 hours in the 12 months immediately preceding the leave
4.) The employer, or a qualified beneficiary, must have a serious health condition as defined in the statute.

IF there is a doctor willing to certify a MEDICAL reason why the father cannot return to work, it might do it. But as an employee can be disciplined or fired for proven misuse of FMLA, and since an employer is likely to look very closely when a FMLA request comes in for the exact time for which leave has already been declined, the doctor had better be very sure of what he's doing and prepared to swear to the medical basis.

All that being said, the employer is being a royal jerk and I wouldn't want to work for someone like that.