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Thread: Fired while on short-term disability California

  1. #1
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    Default Fired while on short-term disability California

    I went on short-term disability on Friday, March 9th, and got a call from my boss today, March 15th, telling me that my employment is being terminated.

    I thought that the company had to hold my job for me while I was on disability. She tried to say that I am being terminated for other reasons, but she also said that she didn't want to have to wait to replace me. She and others at the company knew that I was having health problems. This is important, because I will lose my medical/dental benefits for myself and my family if they can terminate me.

    What should I do to fight this? Thanks

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    Being on disability does not provide you with any job protection. Being on FMLA, however, does. FMLA and STD benefits can and often do run concurrently.

    An employer can legally "replace" you for the period of time you are out; if FMLA or a state equivalent applies you still have to be given your job or one that is equivalent in all respects. Many employers will use a temporary or floating employee to cover for someone out on FMLA but that doesn't mean you aren't entitled to your job back.

    Can you answer a few questions to help us help you?

    1.) How many employees does your employer have within 75 miles of your location?

    2.) How long have you worked for this employer?

    3.) In the last 12 months, have you worked a minimum of 1,250 hours?

    4.) What was the nature of your medical condition for which you needed disability (you don't need to be specific, just general will do).

    In your state there are different rules for maternity, so if that's the case, be sure to let us know.

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    Quote Originally Posted by cbg View Post
    Being on disability does not provide you with any job protection. Being on FMLA, however, does. FMLA and STD benefits can and often do run concurrently.

    An employer can legally "replace" you for the period of time you are out; if FMLA or a state equivalent applies you still have to be given your job or one that is equivalent in all respects. Many employers will use a temporary or floating employee to cover for someone out on FMLA but that doesn't mean you aren't entitled to your job back.

    Can you answer a few questions to help us help you?

    1.) How many employees does your employer have within 75 miles of your location?

    2.) How long have you worked for this employer?

    3.) In the last 12 months, have you worked a minimum of 1,250 hours?

    4.) What was the nature of your medical condition for which you needed disability (you don't need to be specific, just general will do).

    In your state there are different rules for maternity, so if that's the case, be sure to let us know.
    According to my HR, I am on both FMLA and STD now. Here are the answers to your questions:

    1) About 120 employees within 75 miles of my location.

    2) I have worked for the company for about 1.5 years.

    3) Yes

    4) Neck and should pain/limited mobility. I need to have a few procedures done before I go back to work. (I am male and this is not a maternity-leave issue.)

    Thanks

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    Another question: My company's HR dept. sent me a FMLA leave request form, but told me that I did not need to fill it out since I am on disability. They said only to complete the FMLA paperwork if my STD claim was denied, as the FMLA would run concurrently with my STD, but I could also just take a FMLA leave if the STD was denied - but it would then be unpaid.

    So, with regard to cbg's post, it seems to me that I am on FMLA leave and my company recognizes that, but they terminated me anyway, which doesn't make sense.

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    You're absolutely right; it doesn't.

    If you are on FMLA, you have job protection. And legally, you should be on FMLA and STD simultaneously; it's not one or the other.

    If it were me, I'd call HR and ask for a clarification of my status. Then, if you still appear to be terminated and will not be returned to work when you are released by your doctor (assuming that release will be within 12 weeks) I'd then give the US DOL a call - they are the regulatory agency governing FMLA.

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    Thanks much for the information.

    My company was a small company (150 employees) but we were acquired by a very big company last year. (We are now a wholly-owned subsidiary.) The people at my small company do things a little off-the cuff sometimes. I called HR at the big company today about this, and they said they would investigate and get back to me in a couple of days. I am hoping that will get it cleared up, but am preparing for the possibility that it won't.

    If I need to contact an attorney, is there a referral service on this board?

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    Sorry, no, that's one service we can't provide.

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    OK, just so I'm clear on this: My boss told me that I was being terminated for performance reasons and not because I was on disability, but since I was on disability, she can't legally fire me. Do I understand this properly?

    Thanks so much for your help!

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    Disability doesn't provide you with job protection, but FMLA does, and because you qualify for FMLA, it should have been running concurrently with your disability. As cbg said, it's not one or the other. If you qualify for both, you get both, but FMLA is the only one that provides you with job protection.

    Since the company's HR department is checking up on it, they should realize that you should have been on FMLA, and therefore cannot be fired for the time being. However, should they fail to realize this and fire you anyway, you should do as cbg said and contact the US DOL.

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    Quote Originally Posted by sparky76 View Post
    OK, just so I'm clear on this: My boss told me that I was being terminated for performance reasons and not because I was on disability, but since I was on disability, she can't legally fire me. Do I understand this properly?!
    No. You can be fired in spite of being on medical leave, you just can't be fired because of being on medical leave (assuming your employer was obligated to provide you with leave under the FMLA.)

  11. #11
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    Neither FMLA nor being on disability protects you from a termination that would have happened whether you went on leave or not.

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    Is your "poor performance" documented?
    Never, under any circumstances, take a sleeping pill and a laxative on the same night.

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    Quote Originally Posted by morningstar5150 View Post
    Is your "poor performance" documented?
    My manager put me on 60-day notice in early January. I didn't think the performance issues she cited were valid, but it was documented. She also gave me a "performance plan" at that time with several large tasks to be completed in a very short timeframe (far less than 60 days). I completed all of them, and received no feedback from her at all, even though I asked for it. I believe the quality of work was very good, but she had already made up her mind that she was firing me. This performance writeup also happened to occur when I was due a large bonus and she used the "performance issues" as her reason not to pay me any bonus at all.

    When she called me to tell me I'm fired, she said the termination had nothing to do with the disability and it was due to performance. She also said she didn't want to wait for me to return from disability and was firing me so she could post the job and get a replacement as soon as possible.

    My manager knew I was having health problems and I told her a few times that I was going to need to take some time off for surgery. She gave me the performance writeup shortly after that. I think she also has some reasons that are not performance-related for not wanting me there, but I don't want to write a novel. I just want to make the point that there were some performance issues documented, but I don't think they were valid and I do believe the firing was related to my disability.

    Should I contact an attorney about this, or would I just be wasting my time and money? (I realize I am asking for an opinion here - I'm just curious. I obviously don't think I have been treated fairly, but I am still trying to learn the laws in this area.)

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    It can't hurt to run it by a lawyer. If you were let go because your supervisor just doens't like you and was looking for an excuse to let you go and came up with the performance issues, it is unfair, but legal. If your supervisor put you on the performance plan and fired you because you were soon going to be taking leave, that is not.

  15. #15

    Default Yes, definitely contact legal advisor



    Yes, you should seek legal advice. What they did was unfair and unlawful. Regardless of the reasons she/he provided you with when they fired you over the phone, you were still protected. Now once you went back to work, they could of immediately fired you then but not while your out on STD and FMLA.

  16. #16
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    Ginger, first of all, there's very little point in re-activiating a thread that has had no activity on it for two weeks. Secondly, your facts are not entirely correct.

    Being on STD does NOT provide job protection. ONLY FMLA does. Secondly, FMLA does not provide protection for terminations that would have occurred anyway - it is not a blanket protection from ALL terminations. Third, if an employee returns from FMLA and is immediately fired BECAUSE of their FMLA leave, that is NOT legal.

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