“Due to anxiety attacks, I am on FMLA leave; will I be fired when I return?”

Question: Two weeks ago, I had an anxiety attack at work – my third one. I thought I would be written up and terminated, but instead Corporate Human Resources told me I was qualified for Family Medical Leave Act, or FMLA. So I am out on FMLA leave.  

I feel that, when I go back, I will be terminated. Should I be prepared and have my resignation letter handy? 

Alhambra, New Mexico 

Answer: Dear Sharon: Your note to me contains just a few of the facts I would need to know to give you a definitive answer to your question. I don’t know, as two examples, what seems to have led to your anxiety attacks, and why you feel that you will be terminated if you return to work. However, even with the few facts you have provided, I believe so many people share your problem or have one like it, I will do my best:   

 1. As I say all the time, your health must be your number one issue to address, above all others, because without your health you cannot address any other issues in your life. I am surely no health professional, or a therapist of any kind, but it seems to me that your having anxiety attacks is something of a health issue, perhaps one of emotional health. It seems to me that your employer’s Human Resources Department agrees with me, as they see your having repeated anxiety attacks as qualifying you for the federal Family Medical Leave Act, or “FMLA.”  

So, in our analysis of your workplace predicament, and what to do about it, I hope we agree that your regaining your health should be your number one goal, and the “guiding needle on your “compass.” 

2. If you believe that your anxiety attacks may be caused by something or someone at work, you may qualify for Workers Compensation that could be lost if you simply resign. When an employee resigns from his or her job, that ends the employment relation. And, too, it may end some of the employee’s rights – or consideration of those rights – given to employees by the law.

If you believe that your anxiety attacks may be related to something or someone at work, then you may qualify for Workers Compensation assistance, which in most states will pay to you the wages you lose by being out of work, which could be a long time, as well as your medical expenses to help with your health condition, which could be a lot of money. In most states, employees do not have to pay the legal fees of their Workers Compensation attorneys; the local Workers Compensation Insurance Board pays those for the employee. So, this is something you should definitely look into before you consider resigning. 

Workers Compensation cases are generally handled by experienced, specialized Workers Compensation attorneys. You can probably locate local Workers Compensation attorneys by contacting the Bar Association referral service in your town or city. 

3. The same thing goes for your potential rights to Disability payments: you could lose them if you simply resign. In almost all states, employees who find themselves unable to work at all have rights to government-sponsored disability payments. If, near the end of your FMLA leave of absence, you or your physician or therapist believe that, due to your emotional health, you just cannot continue to work anywhere, you should ask your employer’s Human Resources Department to provide you all information you may need to apply for what is often called “Short Term Disability” or STD for short, and is sometimes referred to as “Statutory Disability,” as well. 

Some employers have “privately financed” disability policies for their employers, which means that they pay premiums to an insurance company for “Long Term Disability” coverage for their employees. Some of these policies last 5 years, 10 years, or even possibly until you are 65 years old. Surely, before you return from your FMLA leave, you should look into whether your employer has this kind of “privately financed” long-term disability insurance coverage for its employees, because  this, too, could be a very valuable legal right that you could lose out on if you simply resign. 

4. You just might also qualify for a “Disability Accommodation,” too. Almost every person, sooner or later, either (a) has a disability, (b) has had a disability, or (c) will have a disability. That’s life. Fortunately, the Americans with Disabilities Act (or ADA) provides that almost all employees are entitled to reasonable disability accommodations at work. Said a bit differently, if you are qualified to do your job, and could do your job effectively, if only your employer provided you with a reasonable accommodation, or change in your work circumstances, then you are entitled to such an accommodation by federal law.

Perhaps working on a high floor in a big building causes your anxiety, or suppose that your anxiety was caused by constant vibrations in the floor, then in these circumstances it would not be unreasonable to ask your employer for relocation to a lower floor, or a building without vibrations, as a reasonable accommodation to you. 

You can get a copy of our Model Letter Requesting a Disability Accommodation at Work if you just [click here.] It shows you “What to Say, and How to Say It.”™ Delivered by Email – Instantly!

5. It may be key to consider why your employer’s Human Resources Department was so gracious to suggest you take a FMLA leave of absence. In my experience, it has not been common that Human Resources representatives suggest FMLA leaves of absence. I have seen four different reasons for such graciousness:   

(i) First, of course, your Human Resources representative might simply be a gracious and caring person. In my 30+ years as an employment attorney, I have dealt with many, many Human Resources representatives and managers, and by and large they are a very caring lot. Sure, there are some “bad apples,” but by and large I have found most Human Resources people to be caring professionals. In fact, I have many clients who are Human Resources professionals and almost every single one is gracious and caring. If this is the reason you were advised of your rights, I say “Hooray for Human Resources!” If this is the reason, I also think that you may have little or no reason to fear termination when you return to work. 

(ii) Second, your Human Resources representative might know that the federal Family Medical Leave Act, or FMLA, actually requires employers to advise employees of their rights under FMLA. Frankly, many employers do not do this, because managers often say to their own supervisors and to Human Resources personnel something like, “With this person out on leave, and my inability to replace them right away, I will not be able to fulfill the expectations of Senior Management.” Said differently, many managers find employee rights under FMLA to be a pain in the neck, so to speak. If this is the reason, I say, “Hooray for FMLA!” This would also make me believe that Human Resources will not likely want to terminate you when you return, because it could very well look like they are doing so in retaliation for your exercising you federal FMLA rights. 

(iii) Third, you may be viewed by your Manager as a very valuable employee, the kind of employee your manager does not want to lose, and so he or she is hoping that a leave of absence to get better is the smartest way to go. If this is the reason, then you have very little to fear about being terminated when you return.   

(iv) Fourth, you may be viewed by Human Resources as an employee who might bring a lawsuit for some legal claim against the company they may fear. In these circumstances, employers and their Human Resources departments would not want to create another possible basis for a lawsuit, so it would not seem likely that they would terminate you when you return to work.

 So, from what you have told me, it seems your fear of being fired when you return might just be larger than need be. 

6. It may be wise to have a resignation letter prepared before you return, but if you do it would be wisest to make it an “Involuntary Resignation” letter. A few years back, I came up with a very helpful concept I call “Involuntary Resignation.” You might want to read more about it by simply [click here.]  

The basic idea of “involuntary resignation” is this: If you resign, you are likely going to lose any chance of collecting unemployment benefits (which is not ordinarily given to employees who resign) or receiving severance (which is also not ordinarily given to those who resign.) 

On the other hand, if you put into your resignation that it is entirely “involuntary” – for examples, because of constant bullying, or a grave danger, or repeated sexual advances, or other condition at work, and your employer has not corrected it – and this has resulted in your being unable to continue due to it giving you anxiety attacks, then it is more likely that you will receive unemployment benefits and severance. 

What is the best proof of whether your resignation is “voluntary” or “involuntary?” Simply, what you expressed in your resignation letter. 

For those who would like to present an Involuntary Resignation, but don’t know “What to Say and How to Say It,™” we offer a “Model Involuntary Resignation” letter that you can use. To obtain a copy just [click here.]  Delivered Immediately by Email, 24 Hours a Day. 

7. Sorry for taking so many words to answer your brief question, but these thoughts make up the kind of analysis that underlies successful workplace “navigation” and “negotiation.” Sure, this kind of stuff can be confusing, and complicated. But if you take it step by step, you can reach a better result. And, too, an understanding of “how these things work” definitely reduces anxiety that so often arises at work, and can nearly paralyze you from going forward. As the old saying goes, “Yard by yard is very hard, but inch by inch it’s a cinch.” You can do it, and do it well . . . I promise you!  

Incidentally, if you are initially unsuccessful in obtaining one or more of your desired objectives in submitting your own Involuntary Resignation, we offer a “Follow Up Letter to Voluntary Resignation.” It shows you “What to Say, and How to Say It.”™ To obtain a copy for your adaptation, just [click here.] Delivered Immediately by Email, 24 Hours a Day. 

Sharon, I hope this is helpful to you, and that you will consider these thoughts as you move forward. More than anything, I hope that it be guided more by your leverage and facts of your matter than you are by “what I need.” 

Please consider telling your friends, family and colleagues about our blog – we’d REALLY appreciate that!! 

My Best,
Al Sklover

P.S.: To reduce your anxieties, and keep you “on track,” we offer our 119-Point Master Checklist for Involuntary Resignation. To obtain a copy, just [click here.] Delivered Immediately by Email, 24 Hours a Day.  

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