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FIRED DURING COMPANY-APPROVED LEAVE OF ABSENCE...IS THIS LEGAL? - Dumfounded

Posted: May 28, 2013

I was "terminated" after within 1 week of my company-approved (FMLA) leave of absence. The excuse they used was that my company "could not accommodate" a leave of absence for the extended period of time that I would be out of work. I needed the extended leave of absence because I had CMC arthroplasty with pin placement. My surgeon gave me a written note that stated I would be in a hand cast for 6 weeks followed by 6 weeks of physical therapy, and he would not approve my return to work during that time period. In addition, even though I submitted the proper paperwork (that was approved), they fired me 5 days after surgery! Here’s the real kicker…they did not even send me notification that I had been "terminated". I only found out when I called my team leader and asked why I had been frozen out from my company email and the employee Web site! I had been an employee for almost 2 years and my performance audits ranged from 98.50% at the lowest to 100%.

Is this even legal? Any words of wisdom and advice would be appreciated!!!

Fired during company approved LOA. - OldWoman 1958

[ In Reply To ..]
No...this is most definitely NOT legal. You are eligible for unemployment and I'd take all 6 months worth to find a really good job. Contact legal aid to be sure, but you have a case!

Had you run out of FMLA benefits - Due to a prior leave?

[ In Reply To ..]
I know someone who got fired, but it was because she ran out of the total FMLA benefit.

I would check to see if what they did is legal or not. If you are otherwise a good employee (don't take unapproved time off, consistently work your schedule, etc.,) then that would be dumb for them to fire you.

FIRED - Dumbfounded

[ In Reply To ..]
No, my FMLA benefits had not expired. In fact, I was "terminated" just 5 days into my FMLA leave. I had plenty of time benefit left.

FMLA Benefits - Been there

[ In Reply To ..]
FMLA guarantees 12 weeks of leave in a 12 month period. You cannot collect unemployment if you are on FMLA and still employed. I know nothing about FMLA benefits expiring, but it is illegal for an employer to fire an employee while they are on medical leave. I would suggest consulting an attorney.

Here's what I found - sm

[ In Reply To ..]
Re: Fired while on medical leave
Sorry, but both your pre-suppositions are flawed. It is a myth that being on medical leave gives you a blanket protection that is open-ended.

Barring a state law or a binding employment contract that specifically says otherwise, the LONGEST than an employer is required to hold your job while on medical leave is 12 weeks, and they are only required to hold it that long if FMLA applies. FMLA applies when ALL of the following are true:

1.) The employer has 50 or more employees within 75 miles of your location
2.) You have worked for this employer for no less than 12 months
3.) In the 12 months immediately preceding your leave, you worked no less than 1,250 hours
4.) You or a qualified family member have an illness or injury that qualifies as a "serious health condition" as defined by the statute.

If even one of the above criteria is not true, FMLA does not apply.

If FMLA has been exhausted, or if FMLA does not apply, you can legally be terminated despite being on medical leave, regardless of the legitimacy of the need for additional leave. Again, barring a state law or binding employment contract that specifically says otherwise, there are NO circumstances when an employer is legally bound to hold your job any longer than 12 weeks.

IF AND ONLY IF FMLA applies, contacting you about customer service issues MIGHT be a violation, but it is a minor violation at best. EVEN IF FMLA applies, they are entitled to contact you to find out when you are coming back. They ARE entitled to medical verification of your illness or injury. They may request re-certification from your doctor once every 30 days if FMLA applies; if FMLA does not apply, they may request recertification as often as they like.

Under FMLA, you are protected from being fired for excessive absences (as long as the FMLA is still in place) and you cannot be fired BECAUSE you applied for FMLA. However, FMLA does NOT protect you from being fired for reasons that are unconnected to the leave. If you would have been fired for the reason in question reason regardless of the fact that you were on FMLA, you can be fired while on FMLA. Some employers will choose to wait until the FMLA time is up before notifying you of the termination but that is company policy, not law. If FMLA does not apply, being on medical leave provides you with no job protection whatsoever.

Nothing whatsoever in the law prohibits them from "discussing you", whatever that means, while you are on medical leave, regardless of whether FMLA applies or not.

Not sure if you are the one that always supplies the legal - info needed, but if so, thanks. nm

[ In Reply To ..]
x

Presuppositions? - Been there

[ In Reply To ..]
Her presuppositions are not flawed. FMLA guarantees 12 weeks of medical leave in a 12-month period if the employer (private sector) has 50 or more employees. They may skirt it on the 75-mile issue, I'm not sure how it applies to people who telecommute. They cannot terminate you with proper documentation (which the OP has) and if her job performance is satisfactory, she cannot be terminated. She could be fired if there are issues with her job performance, and she could be terminated when she returns to work.

I am assuming that the OP is an employee, I don't know which rules apply to independent contractors.

Bottom line? - The OP has a case and needs to seek legal aid.

medical leave - Effie

[ In Reply To ..]
My daughter was terminated while out on maternity leave.. she worked up until the day before the twins were born and was terminated the day after they were born. However, she DID get unemployment benefits which in the end turned out to be a termendous blessing as she was able to stay home with the babies for their first year. So definitely apply for unemployment.

I'm sorry your daughter was terminated the day after - the birth of her babies,

[ In Reply To ..]
and I'm glad she was covered for whatever length of time she may have been covered if she was still an employee with her company. However, are you saying she collected unemployment for a year just so she could stay home with her babies? I don't blame her for staying home with them (fantastic thing to do if you're able), but unemployment insurance benefits are for the unemployed who WANT to be employed and are seeking a job.

There are so many people out of work who cannot find another job, and their benefits have run out so they have zero income. If the system wasn't so broken, those people could be covered for a longer period of time. Part of the problem is that people use unemployment benefits when they're not even looking for work. I'm not saying your daughter did that (maybe her maternity leave from her company would have allowed for a year's leave), but when someone does misuse their unemployment benefits, it hurts those who really need it but cannot find another job within the weeks allowed to collect UE.

unemployment. - Effie

[ In Reply To ..]
In my daughter's case she is a nurse and worked for a small hospice. They didn't want to pay for her unemployment and told them that Becca was laid off due to low census and would be hired back when census was higher. They had no intentions of hiring her back. However, at least here in Texas, if you are laid off but expected to be hired back, you qualify for unemployment and do not have to look for a job. She could have sat at home for two years but only did the one year and then went back to work.

Tons of people are probably collecting unemployment and have no intentions of immediately findings a job. I believe that unemployment is an earned benefit and how people want to handle that benefit should they need it is up to them.

Myself, I worked for 27 years for a hospital system here and six months before they laid off all the MTs I took another job and lost all that lovely severance pay and unemployment benefits that the other MTs got.. however, I could see what was coming and chose the security of a real job... and I am very thankful I did. My daughter, being a nurse, knows she will always be able to find a job.

Don't forget at-will employment too. They don't need an - excuse, but hand problems would certainly

[ In Reply To ..]
qualify as one. You may have been let go because you need medical care and are, actuarially speaking, more likely than most to need more in future, also more time off, lower production. Happens ALL the time.

However, there might be a mixed blessing in this. If you didn't get new insurance before November, current problems being covered under your current policy, you would qualify to shop insurance in a state run insurance exchange. Additionally in states that will offer Medicaid you might qualify for that insurance. And there are other premium discounts, etc., that will be avilable to a large number of people.

You'd have to look into it in some detail, contact agencies, etc., though, because it's complicated and there are time limits involved. Unfortunately, in our national wisdom we not only decided to keep our employers' noses in our personal health issues, but decided to somehow build our new insurance ranch house inside the decrepit old Victorian that was already standing on the lot, so there are lots of weird twists and turns. The beautifully simple and well established alternative would have been to open Medicaid to everyone, but that didn't happen.

Unfortunately, welcome to the real world,.. extremely sad - anon

[ In Reply To ..]
I am so sorry. Yes, this happens. I have gone from the operating room to work within a few hours on numerous occasions, including several severe surgeries and neuro UCI, where I almost died. Sorry for your loss. BTW, this happens in every field, not just MT. Good news: Jobs are a dime a dozen. Hope you feel better and find a better company who appreciates you.

My experience - Been there

[ In Reply To ..]
I have to say that I don't think the OP should let this happen without seeking some professional advice. I messed up my ankle big time a couple of years ago and needed surgery with hardware replacement. My ortho doc wouldn't let me partial weight bear until 4 weeks postop, it was 8 weeks before I was able to begin physical therapy. Prior to my injury, I worked on site and when I was released to work, because I could not leave the house, they set me up to telecommute until I was back on my feet, I went back when I was able and my job was waiting for me. I was kept on salary the entire time, I realize now that they did not have to do that. I remember some discussions with family members and others in the know at the time because I was worried about having my employment terminated. The general consensus was "there will be attorneys lined up around the block waiting to take your case if they try to terminate you." Learn your rights and find out if you have any recourse (that is, if you even want to keep this job), don't just accept what they did because "that's the way things are." That is why employers get away with this kind of thing. If it's an issue with your hands, it may be a Workers' Comp claim.

Fired during FMLA - Guy Fawkes

[ In Reply To ..]
We need to organize a union. Companies took over AAMT and made it all management, all the time.

THANK YOU ALL! - DUMBFOUNDED

[ In Reply To ..]
Thanx for sharing your advice and wisdom. I did not mention the name of the company I "worked" at since my objective was not to "bash" my former employer. I consider myself a skilled MT and once I am released back to work by my surgeon, I will (hopefully) find a new MT position.

May the Force be with us all!

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