How to dodge an FMLA bullet: Consider granting after-the-fact leave request

Sometimes, simple medical procedures turn out to be not so simple after all. A few days off for outpatient surgery may morph into a lengthy FMLA leave and render the employee disabled.

Don’t jump the gun and terminate the employee without considering whether he’s now entitled to FMLA leave and reasonable accommodations.

Recent case: Jose, an animal control officer, injured his back while loading a mosquito sprayer. After a short leave, he tried to return to work, but doctors discovered a more serious problem while evaluating his potential return. Jose had an abdominal aortic aneurysm that needed to be repaired.

Jose’s doctors estimated he would need just a week off. They were wrong. Surgical complications landed Jose in the hospital for a week. Doctors recommended 90 days off to recover.

Jose’s daughter personally delivered the doctors’ recommendation to the employer. Before he could return, he was informed that he was being terminated.


Jose sued, alleging that he had been denied FMLA leave and had been fired because he was disabled.

The employer argued that Jose should have asked for leave before the initial surgery. That didn’t fly. He didn’t know he needed FMLA leave until after the surgery and then informed the employer right away. Plus, while he wasn’t disabled before, he might very well have become disabled during surgery. Both claims will go to trial. (Pena v. County of Star, No. 04-12-00462, Court of Appeals of Texas, 4th District, 2013)