Q: My mental health breaks may cost me my job.. I’m not sure if they are supposed to count against me?
Recently diagnosed with bipolar 2. Have been having huge episodes happening and 1 recently while on break at work. I am taking a 2nd mental health day to try and get all this under control with my meds. My position has a rule of no more than 3 incidents (absence) within 6 months. This would be my 2nd. Can this all be held against me?
A: If you qualify for the California Family Rights Act or the Federal Family Medical Leave Act, those mental health breaks should not count against you, if you get a certification of your need for intermittent leave from your doctor.
In order to qualify, you must have worked 1,250 hours in the last year, worked for your employer for at least 1 year and your employer must have at least 50 employees (for at least 20 weeks) within a 75 mile radius during this year or last year.
Louis George Fazzi agrees with this answer
A: Generally an employee who misses work can be disciplined or terminated for excessive absences at any time the employer desires. However, if the leave is protected under one of several protective statutes, it cannot be used to discipline or terminate you.
There are various kinds of protected leaves. If you are with a large company (50+ employees within 75 miles of your workplace) and you have been there for at least a year and you have worked more than 1250 hours in the last year, you qualify for protected FMLA and CFRA leave if you inform the employer of the serious medical need for the leave. If you work for a smaller company (5 or more employees) and you have provided the employer with medical documentation of a need to be reasonably accommodated with intermittent leave to address a disabling condition, and intermittent leave would not cause an undue hardship on the employer, then the Fair Employment and Housing Act would require the employer to extend that intermittent leave to you. If you have not already used up your right to paid sick leave under the California Healthy Workplace Families Act, and you provided sufficient notice of the need for sick leave, it would be unlawful to retaliate against you for asking for or taking that sick leave.
In short there are several ways it might be unlawful to terminate you in these circumstances, but more needs to be known to determine if you have a meritorious legal claim. At this point it would be wise for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.
Most employment attorneys who practice this area of law offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
Good luck to you.
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