“I took a FMLA leave of absence, and my boss told people of my medical problem. What should I do?”

Question: Last year I took a leave of absence from my job due to depression. Since then, my boss has been really mean to me. Recently, some papers were left on my desk with Facebook conversations in which my boss told at least two co-workers that she wanted to fire me, but couldn’t because I was undergoing psychiatric treatment. She called me a “freak” and “crazy.” I gave copies to HR

I’m currently on an intermittent FMLA leave of absence and I feel my boss is being hostile to me, and that she violated my privacy.

I don’t want to do anything to jeopardize my employment.

Any suggestions?

Name Withheld

Answer: As a threshold matter, you need to understand that standing up for yourself at work is not easy, and is always risky, to some extent. However, the law is clear: if you don’t file a written complaint you cannot expect your employer to correct the problem, and you really won’t have any legal rights, either. And understand, too, that not standing up for yourself is usually riskier than not doing so; without standing up, you are likely to be further victimized.

I think you did the right thing by giving copies of the Facebook conversations to HR, but I am uncertain as to how you sent them. If you handed them in, without an email transmittal memo as proof, you have to re-deliver them to HR by email, so you have a good, strong record of your having done so. I often say, “Email is your friend.”

Your boss seems to have certainly violated two important federal laws: First, FMLA, the Family Medical Leave Act. FMLA permits you to take time off for a medical problem, and guarantees your job when you return. It also prohibits the retaliatory hostility you have suffered as a result of taking your FMLA leave of absence. It seems your boss does not like your taking time off for your difficulty. Too bad for him or her!! That is the law, and he/she must live with it. I am sure he or she will expect people to be understanding if he/she has a problem, and also takes a FMLA leave. FMLA also prohibits the sharing of personal medical information about a person taking FMLA leave.

Second, the federal HIPAA law – which stands for Health Insurance Portability and Accountability Act – passed by Congress in 1996, grants people like you a right of privacy from health providers sharing your intimate information the way your boss did. If your company gives you health insurance, they may be deemed to be a health care provider. So, your boss may have violated your federal HIPAA rights, as well.

I suggest you write a letter to both your company’s President (or CEO), and to the Head of HR, and tell them what happened, mention violations of HIPAA and FMLA, and don’t forget to mention the word “retaliation,” too, by your boss for your taking FMLA leave.

The letter and the Facebook conversations MUST be sent by email. And it needs to be respectful, dispassionate, and convey that you are determined to stand up for yourself and be rid of such illegal mistreatment, let alone personal indignity.

We offer a Model Letter to assist you in Filing a Complaint of FMLA Retaliation. To obtain a copy, simply [click here].

I suggest, too, that you ask for a new boss, because this one is contributing to your medical difficulties.

Taking these steps, in my experience, will help you avoid further retaliation, further hostility, further problems, and is likely, too, to lift your spirits. The folk singer Joan Baez once said “Action is the antidote to despair.”

I hope this helps. Please write again to let me know how things go.

Best, Al Sklover

© 2009 Alan L. Sklover, All Rights Reserved.

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