medical leave, untruths, etc.

[ceyanne]

On 11/26/05, my husband was was in an accident that caused a rupture of the distal biceps tendon (the tendon that holds the biceps muscle to the bone completely tore at the elbow, detaching his biceps muscle). Because of this he was unable to work at his job as a machinist. He had surgery on 12/12/05 and was under the care of a orthopaedic from the time he sustained the injury until the present, as he is still rehabbing. The dr. released my husband to go back to work on 3/6/06 on light duty, meaning he can lift no more than 10 lbs. with his injured arm. While my husband was out on medical leave, we discovered that his employer had been looking for someone to replace my husband. Also, while he was out of work, he was required to pay for our insurance, as he was receiving no paycheck from which it could be deducted. During the 3.5 months he was out of work we had no income, as disability was not an option with the company he worked for. Upon being released for light duty, to begin 3/6/06, he was told by the office manager that he might as well not not bother coming back because there was nothing there for him do on light duty. This is not true. He could have set up machines and done the pogramming of them on the computer. None of that involved heavy lifting. So on 3/6 my husband went back to work, only to be called into the owner's office and told that they were going to put him on a 90 probationary period "due to your excessive time missed since your date of hire in May, 2005." He was on medical leave under the care of a physician, not a lazy bum who just didn't show up for work! It seems like they basically wanted to punish him for the time he HAD to take off. Can they do that? The company lied to him from day one, from the time they recruited him to come work for them right up until the end. They promised him him a certain pay after his initial 90 day probationary period that never came to fruition, they told him that if he needed a day off here and there (w/o pay) it would not be a problem and yet it was, they told him that no one was getting a Christmas bonus in 2005, yet everyone but my husband did, I guess as "punishment" for being out of work injured.

I don't really know if they are violating and MD labor laws or not, and I'm guessing not, but I figured I'd throw the situation out there anyway, if not just to vent a little. I realize that a bonus is not a given and that the other stuff (salary and time off) was only a verbal agreement, but it still speaks to the intergrity, or lack thereof, of this particular company. Thanks.

[cbg]

Since your husband had only worked for the employer since May of 2005, he was not yet eligible for FMLA, which would have provided him with up to 12 weeks of protected medical leave. Since FMLA did not apply, they had no legal obligation to provide him with any medical leave at all. Except in certain limited circumstances which do not apply here, they are not obligated to provide light duty, even if light duty exists. I'm not saying I necessarily agree with the way they handled it, but they did not violate any laws. The myth that one cannot be fired while on medical leave or while under a doctor's care is just that - a myth.

[ceyanne]

Hi! Thanks for your reply. I do realize that he did not qualify for FLMA and that honestly was not even my beef with the employer. It's the idea that they are saying he had excessive absence, when they know full well he was under a physician's care. I am concerned about how that might look if a new company were to inquire about his past employment history. I mean, we do have the med. records to back up his time off from work, but it still doesn't look the greatest, you know? The employer also stated that "you would not conform to another 90 day probationary period based on your past employment history". He'd only been with them since May 05 and with the exception of a day here and there since May and up until the Nov. accident, he most certainly did not have excessive absences from work. Ugh, it's just very frustrating. But I do appreciate your time taken to answer my initial message.

[cbg]

The fact that he was under a doctor's care does not mean that this cannot be classified as excessive absences. "Excessive absence" does not mean exclusively someone who is goofing off. ANY time you are out for a time that exceeds the state or Federally mandated time (which does not apply here) can be so classified, even if it is medical; even if it is for time under a doctor's care.

I think you are assuming that a prospective employer will hear this and jump to the conclusion, without asking for clarification, that this means your husband will be unreliable. That is not at all the case. Any HR manager worth their salt is fully aware that "excessive absence" can and often does mean unprotected medical leave. All he has to do is explain that he had been injured and was not medically cleared to return to work and so the company had let him go, but now he is back to full strength and is quite capable of taking on the position he is applying for with no problems.

[ceyanne]

Aha! Thanks for that clarification!

[ElleMD]

Agree there is nothing under MD law that would have prevented what happened. 3.5 months is a long time to hold a position and maintain insurance for someone who has only been with you for 5 months. It is to their credit that they did so.