Legal Question in Medical Leave in Virginia

Re: Does FMLA apply ?

This is very complicated.

First, the two companies arguably are "joint employers" for FMLA purposes, meaning that all the employees of both are counted together to make up the minimum 50. That is because they both have some control over the employees.

Second, even if FMLA applies, the company or leasing company could claim you used up your FMLA after 12 weeks of absence, even if they did not characterize the leave as FMLA leave to begin with. That is an open question that a court would have to decide.

Third, the companies could claim you are not entitled to FMLA because you did not work 1250 hours in the past year. That would likely be a winning defense for them because you have to do so to be eligible.

Regardless, you should try asserting your FMLA rights and see what happens.

Next, the question is whether you are still employed. Why is the employer allowing you to continue to use its insurance? Are you paying COBRA, or are you still listed as an employee? If the latter, you could claim that you are being discriminated against due to the disability by virtue of having to pay for the entire premium.

But if they have actually discharged you at this point because you cannot work, that is probably legal (though perhaps unfair). You would then be entitled to COBRA coverage and usually you would have to pay the entire premium to remain insured under the employer's policy.

Figuring out who the employer is, whether you are employed, what your FMLA rights are and whether you have a discrimination claim is difficult. You can start by asking the companies: whose payroll you are on; and whether you are still an employee. You can send an email to both so if you get a response you will have a written record. You can make your FMLA request in writing as well (bearing in mind that you only get 12 weeks of coverage per year even if they grant it.)

After you get that info, if you need to pursue a legal claim, you can call the US Dept. of Labor for help in filing an FMLA claim, and the EEOC to file a disability discrimination claim. Both are free. If you want an attorney, call the VA Bar Association for a referral.

Last, if your disability will continue indefinitely, consider applying for Social Security Disability benefiots. I highly recommend using an attorney for that as most claims are initially denied no matter how strong they are.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon, Esquire

The Sheldon Law Firm

17804 St. Lucia Isle Drive

Tampa, FL 33647

813.986.7580

(f) 813.986.7489

(Admitted in Fl., MD, D.C., and Pa.)

[email protected]

http://www.SheldonLawFirm.com

Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.

Re: Does FMLA apply ?

Your question, apparently, reduces to the following:

1. If you're actually employed by the

leasing agency, this employer would be covered by FMLA since they have 50+ employees and, therefore, you could be eligible for FMLA leave.

2. If you're not employed by the leasing

agency but rather the company with around 20 total employees, you would not be eligible for FMLA leave since this employer would not have a sufficient number of employees to be covered by the Act.

As to which of the above is correct, I have no idea, since you yourself, apparently, don't know which is which and have not provided sufficent

information in your question to the BBS for anyone else to make an independent determination

of this particular issue.