Can an employee be terminated while on disability without notice? Also, they did not receive any Cobra Info in writing. The employee was notified by phone that they had been terminated on April 30th, 2006, and had been put on Cobra for the past 2 months. This happened the end of June 2006. This guy is seriously ill and has been with this company for 20 years. I am writing on his behalf. This all seems so illegal and wrong. He was not notified of the FMLA as well. Not only is he a cancer survivor with disabilities, he is under the care of a psychiatrist and is now facing more disfiguring surgery. Please help. Any words of wisdom would be appreciated. My friend could lose his apartment, all his current doctors, and maybe his life.

Despite what a great many people mistakenly believe, there is NO law in ANY state that says you cannot be fired while on disability leave. There are SOME circumstances when a disability leave is protected, but by no means all of them.

In addition, the law does not require COBRA information to be provided at the time of termination. They have up to 44 days after the end of coverage to provide it. Since it appears that they paid for the first two months of coverage after termination, as long as they give him the statutory time to make his elections and his first payment, they're probably okay.

On April 30, how long had he been out of work? Also, how many employees at the company? That will determine whether any laws, including FMLA, had been violated.

As of April 30th, he had been off work for 2 weeks. He didn't file for his disability until mid May, but it was retroactive from March 13th. His company faxed him COBRA enrollment forms in May, but he was never told that he had been terminated as the forms were blank. They refaxed the filled out COBRA FORMS end of June and that is when he saw that he had been terminated on April 30th. As far as FMLA they have 20 employees and maybe more, as the company is very well known, and could have other employees that he does not know about. Any help would be appreciated. He is now on disability for mental issues caused by his many serious medical issues and then will be switched to medical disability when he has his next surgery. I know that part doesn't matter, I guess just the termination, cobra and FMLA issues.

If the company has under 50 employees, FMLA does not apply. If I understand the CA law correctly the state version of FMLA also does not apply for less than 50 employees.

If FMLA does not apply, there can be no violation of it. With no FMLA protection, it is not illegal to term someone who is absent for medical leave, no matter how legitimate. As I said in my first post, although a startling number of people mistakenly believe that the law prohibits firing someone who is collecting disability benefits, that is not true.

The COBRA issue is a bit confusing, but it still sounds as if the company bent over backwards to see that he did not lose coverage. In any case, since he acknowleges receiving the documentation within the statutory time, I think it's questionable whether the company can be found liable for a COBRA violation. I think faxing them was a bit foolish but it's not prohibited by law. Did he contact them and tell them the forms were blank when they were received the first time? Did he ask them why he was receiving COBRA forms? Does not the receipt of COBRA forms imply termination. (BTW, there is no law requiring an employer to tell an employee they have been terminated, strange as it may seem to you or me.)

1. Sick for 2 weeeks w/ Drs. note beginning 3/13/06
2. Unable to return to work first for medical issues and then mental issues caused by ongoing serious medical problems. He's 59 and had held a manager position which he could handle with all his disabilities, but was suddenly demoted before any of these problems started.
3. Found out at end of June he had been terminated 4/30 by the date on the faxed COBRA papers. These were only forms that did not include the customary letter, and sent well past the required 14 days. He was not aware of the 60 day/45 day time periods. He is facing major facial disfiguring surgery and now risks the loss the doctors that have been treating him and his insurance.

Sorry for the confusion, but it's hard to get the facts straight from my friend as he is so distraught. It just takes me time to ask all the right questons and get to the point.

It's not only 14 days for COBRA; it can be up to 44 days.

The employer has 30 days to notify the administrator; the administrator then has 14 days to send the COBRA notice. Even if someone working for the employer is the administrator, it still works that way.

Case in point; I am currently the COBRA administrator for the firm I am contracted to. The firm has nearly three thousand employees in 7 offices in six states, including one state that is several thousand miles away. They have 30 days to notify me; I can't possibly be aware of the status of that many employees without notification. Once I've been notified, then I have 14 days to send out the notice.

It certainly sounds as if the company has handled the situation badly, but I'm still not convinced that they've violated any laws with the possible exception of COBRA, and even that sounds as if it's under control. They do not have enough employees for FMLA to apply, and with a company of only 20 employees it's entirely possible that having a manager out for an extended period of time can work a hardship on the employer. Forgive me for saying this; I don't know your friend and I don't mean any disrespect towards him. But I'm not sure his perception of how well he's been handling his work can be trusted, given what you've told me. I'm not sure that the company may not have had more reason than just his absence to term him.

He can try talking to the CA DFEH to see if he's got any kind of claim for an ADA violation, but if he's facing still yet another extended absence, the company may be protected. And COBRA means that he would NOT be without insurance; that's the whole point of it.

CA disability discrimination laws apply- he needs to see an attorney and have his case evaluated.

I remembered you said the definitions were more liberal in CA; that's why I referred him to the DFEH.

For my own edification, when does one go to the DFEH and when to an attorney?

Well cbg, if it is a case I want, I tell them to call an attorney. You might notice this for wage and hour law as well - if I send them to the labor board, that means that I don't want the case. I assume that anyone with a case that an attorney will take is better off represented.

Also, DFEH investigates very few cases. Most of the time, they just give out the right to sue notice, which shortens your statute of limitations. I have been told by clients who went there first that the DFEH tells anyone with a legitimate case that they are better off going to an attorney.

That being said, when a person with a borderline discrimination case calls me, I frequently tell them to go the the DFEH first, and then give me another call if the DFEH can't resolve it.

Do you have any advice on what to tell an Attorney without rambling, as to catch his/her attention? There are so many aspects of this mess, I don't want my friend to talk about things that aren't applicable.

He is in No. Cal & I'm in So. Cal, so this is quite challenging. At lease No. Cal is WAY more liberal (may or may not help).

I'm not getting my hopes up, but this is the first encouraging thing so far!

Most attorneys will ask you the important questions right off the bat- if your friend just answers the questions, without worrying about giving all the background information off the bat, the attorney can decide if they want the case (and at that point, your friend can give ALL the details).