Legal Question in Employment Law in California
Labor law or Immigration?
My daughter's petition to migrate here in US has been approved by DOJ. She is 11 yrs old with Cerebral Palsy. Can't talk, walk or even eat any by her self. She has to go through the process of completing all necessary documents like obtaining passport, medical examination, and visa interview @ Philippines Embassy in Manila Phil.
When I ask for my employer for 1 mo leave of absence, they said they can't grant me LOA. Only whatever PTO I have which is 8 days. And they want me to resign if I wanted a month off. As her parent (single mom), is there any law that maybe my employer had overlooked?
2 Answers from Attorneys
Re: Labor law or Immigration?
A parent can use the FMLA "to care for the employee's spouse, son, daughter, or parent with
a serious health condition" however this is a rather broad statement.
I don't know if this would be considered a "move" if your daughter cannot care for herself then you would be moving her and caring for her at the same time. So then you could argue the primary purpose of the FMLA is care for you daughter.
However, lawyers live in a hypothetical world and we do not suffer the consequences of these types of decisions. If you request FMLA leave and the employer denies it, you have legal remedy to have it reviewed. Or you can claim discrimination, retaliaiton, or failure to follow FMLA procedures and sue if you are terminated after you come back from the Phillipines.
You should call your local Department of Fair Employment and Housing Office and see if they can offer any guidance or take any action for you.
Re: Labor law or Immigration?
This is a close question. Although your daughter has a serious medical condition which may qualify you for Family Leave (provided other requirements are met), but there there is caselaw which states that helping a sick relative move does not qualify you for family leave.
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