The FMLA protects those unauthorized to work in the U.S.

Case in point

In the case, Karen, an employee, went to a walk-in clinic to have a glass fragment surgically removed from her face. She told her supervisor about the surgery, and the procedure took place.

A week or so later, Karen returned to work, but the employer fired her for being late or absent too many times. At least one of those occurrences was because of her surgery, which qualified as a serious health condition.

Karen sued, arguing that the employer violated her state FMLA rights. The employer rehired Karen, but when she couldn’t provide evidence of being authorized to work in the U.S., the employer fired her again. The leave suit, however, continued.

The employer argued that it couldn’t violate the leave law by firing an undocumented worker, as that worker had no right to employment in the first place, and federal immigration law mandated the discharge.

The court, however, disagreed:

“The fact that undocumented workers have no right to continued employment, just as at-will employees have no right to continued employment, does not mean that employers are free to ignore employment laws. Once employed, employees (regardless of immigration status) have the right to take medical leave for the period during which a serious health condition renders them unable to perform their employment duties.”

Other courts have ruled accordingly, indicating that just because employees are undocumented doesn’t mean they lose their rights under employment laws. Undocumented workers might not, however, be entitled to damages.

Burlington Graphic Systems, Inc. v. Department of Workforce Development, Appeal No. 2014AP762, December 23, 2014.

Key to remember: Employers need to ensure they hire authorized employees, but if they do, those employees have FMLA leave rights.