What protection exists for employees not covered under FMLA?

I was not allowed to attend a doctor ordered time-sensitive blood draw that may have prevented an undiagnosed (because blood test was not done) ectopic pregnancy from rupturing and nearly costing me my life 2 weeks later. Further more, the day the ectopic pregnancy ruptured I was taken to the ER from work and before I passed out my direct supervisor was told I was in severe pain and that I could not breath deep enough to speak to do my job and that I thought something was wrong and I was told to “hang in there.” Does my employer have any responsibility in this?

Asked on August 19, 2011 Washington

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

No, the employer probably does not have responsibility or liability in this, if you or your employer were not covered under the Family and Medical Leave Act or the Washington State Family Leave Act. I'll include a link to the FLA below, but it appears to have similar requirements (e.g. at least 50 employees) as the federal FMLA, so if you or your employer were not covered under the one, you were probably not covered under the other.

The problem is that 1) in the absence of medical leave (including leave for a doctor's visit) mandated by law or by contract (e.g. if you had an employment agreement or union contract providing for leave), an employer has no obligation to provide it--with no obligation, they are not liable; and 2) the employer can ask you to "hang in there," but can't actually force you--you could have left if you felt you needed to for your health, and then accepted the employment consequences.

If you had sick days which you were entitled to use AND tried to use them for these reasons, then you may be able to establish a cause of action--the employer may have breached its implied employment contract with you, but not letting you use benefits (the sick days) you'd earned. But other than that, there is probably no basis for liability, though you should consult with an employment attorney about the specifics of  your situation to be sure.

Here is the link--good luck: http://www.lni.wa.gov/WorkplaceRights/files/FamilyLeaveFAQs.pdf


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