Florida Firefighter Files FMLA Suit

A Florida firefighter who was terminated last year is claiming the fire department violated the Family Medical Leave Act (FMLA).

Sergio Valdes was fired by the Greater Naples Fire Rescue on December 28, 2016, the same day he returned from a work related injury.

According to the complaint, on October 27, 2016 Valdes experienced a medical episode while at work that was associated with mandatory fasting for his work medical exam. He was transported to the hospital and treated. The condition was considered to be a work related injury and covered by workers comp. In addition, the condition qualified for protection under the FMLA.

According to the complaint:

  • VALDES was regarded as disabled by GNFRD based upon his actual and his perceived impairment.
  • As a result of his serious health condition that appeared to be caused by work, VALDES required medical leave, which GNFRD knew about and granted.
  • VALDES’ s physician issued him clearance to return to work without restrictions on December 28, 2016, which would conclude his FMLA leave.
  • However, GNFRD not only refused to allow VALDES to return to work from his FMLA leave on December 28, 2016, but it terminated his employment that same day, which was not discovered by VALDES until weeks later.
  • As a result of his termination, VALDES was left without health insurance, which was particularly damaging given the birth of his daughter just two days after his termination.

The three-count complaint accuses Greater Naples Fire Rescue of violating the Family Medical Leave Act, retaliating against Valdes for taking FLMA leave, and retaliation for using workers comp. It was filed last week in US District Court for the Middle District of Florida.

Here is a copy of the complaint: Valdes v. GNFR

Complicating the case is the fact that on October 27, 2016 when Valdes was injured, he worked for the Ochopee Fire District. On November 1, 2016, the Ochopee Fire District merged with the Greater Naples Fire Rescue. So there is a question about whether an employee in Valdes’ situation has protection under the FMLA with a new employer.

To qualify for protection under the FMLA, an employee must have worked for an employer for at least 12 months and worked at least 1,250 hours in those 12 months. However, the law allows time worked for one employer to bind a new employer if the new employer is a successor in interest. Here is the relevant law:

29 CFR § 825.107 Successor in interest coverage.

(a) For purposes of FMLA, in determining whether an employer is covered because it is a “successor in interest” to a covered employer, the factors used under Title VII of the Civil Rights Act and the Vietnam Era Veterans’ Adjustment Act will be considered. However, unlike Title VII, whether the successor has notice of the employee’s claim is not a consideration. Notice may be relevant, however, in determining successor liability for violations of the predecessor. The factors to be considered include:

(1) Substantial continuity of the same business operations;

(2) Use of the same plant;

(3) Continuity of the work force;

(4) Similarity of jobs and working conditions;

(5) Similarity of supervisory personnel;

(6) Similarity in machinery, equipment, and production methods;

(7) Similarity of products or services; and

(8) The ability of the predecessor to provide relief.

(b) A determination of whether or not a successor in interest exists is not determined by the application of any single criterion, but rather the entire circumstances are to be viewed in their totality.

(c) When an employer is a successor in interest, employees’ entitlements are the same as if the employment by the predecessor and successor were continuous employment by a single employer. For example, the successor, whether or not it meets FMLA coverage criteria, must grant leave for eligible employees who had provided appropriate notice to the predecessor, or continue leave begun while employed by the predecessor, including maintenance of group health benefits during the leave and job restoration at the conclusion of the leave. A successor which meets FMLA’s coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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