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Potentially new employer.....need some advice Kentucky

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  • Potentially new employer.....need some advice Kentucky

    I have been on LTD (which is a company benefit for 6 mos. then the coverage I pay for kicks in) for a 3 months now following a surgery. Fortunately, I am recovering quite well now and am attending PT regularly. The best estimate for return to work from my doctor is 3 weeks. This will then require accommodations from my doctor to suit my condition(i.e. light duty, different working hours to manage PT, etc.), which is getting better every week. My employer has no qualms about doing this, and are preparing a workload to fit my needs.

    Here's the problem:

    I don't think my body is going to be able to do my job for a long time(6-9 months)and even after I heal fully, I can't risk another injury for fear of being really, truly disabled. This is not a WCC, my injury happened off the job, just FYI.

    Now it gets good:

    In the meantime, I had an interview with another company. They set up a drug-screen and physical after the first interview. I suppose I should mention that they are an EOE.

    Should I disclose the information about my status at the physical or during the next phase of hiring?

    How do you think my current employer will react when I tell them I have another job?

    I really need some good advice from someone. My window of time is getting smaller and smaller.......

  • #2
    Look at this a different way - there's no point in wasting your time going through the interview process only to find out at the 11th hour that the job is not physically suited for you. I don't think you should lead off in the interview with your limitations but when it's your turn to ask questions, do ask about the physical demands of the job so you can ascertain whether the position is something you're capable of doing. If it appears that it is and/or you have a few questions about any accommodations they might be able to make, then it's appropriate to discuss your health status.

    Good luclk.


    • #3
      How do you think my current employer will react when I tell them I have another job?

      Nobody here could possibly know that. With any luck, they'll be gracious about your leaving.


      • #4
        Originally posted by Beth3 View Post
        How do you think my current employer will react when I tell them I have another job?

        Nobody here could possibly know that. With any luck, they'll be gracious about your leaving.
        Sorry, I probably should have clarified that question just a tad. What I am really wondering is:

        Because this benefit is contingent upon employment, is there the possibility of any legal repercussions happening due to the acquisition of a new position without actually returning to work?


        • #5
          squeakyD, if you have used FMLA and your current employer has paid medical insurance premiums while you have been on FMLA they can charge you for those premiums if you do not return to work for a minimum of 30 days. This is true if you don't return by choice not if you weren't released to return or had a good reason, finding another job is not considered a good reason, for not returning.

          Just curious but with an employer that is willing to accommodate any necessary restrictions why would you want to change to one that may or may not be as accommodating? Also it would appear, (you don't mention a cba, union, nor employment contract), that your current employer has held your position far longer than required to by law which is quite exceptional. Is that something you really want to give up for an unknown?

          Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.


          • #6
            This is why I posted this thread from the get-go. Its definitely a crossroads in my life.

            On one hand, we have my current employer who has been more than kind in regards to holding my position and will accommodate any restrictions I have when I return to work. No, I'm not in a union, don't have a labor contract or any other binding agreement holding me to this position. Does HR file or claim FMLA or was that my responsibility? I never did it if it was. Understand that my job is pretty far up there on the physically demanding side. No constant, but when its tough, its really tough.

            On the other hand, the unknown. A union company, working different hours, different job altogether really(job description included, truly a step up title-wise and pay-wise $$$$). But I've never worked for a union and don't know how things will change. I'll be able to perform the jobs requirement for sure, I just don't know how they'll see it from a medical perspective at first.

            I took the physical for the new job, had to diclose my info and was put on hold until my doctor could release me. Shouldn't really be problem, because this job is less physically demanding, hence the reason for finding a new job. It isn't like I'm working in a mine and I just found a new company and different mine to work in, new job altogether.

            Clear as mud now, right??


            • #7
              About FMLA again too, as I stated above, I have never filed for it and have had insurance taken out of my LTD checks each week, in addition to the extended LTD coverage I opted for in the beginning. Was "I" paying for it or was the company?

              And one other little thing. When I say accomodations, I don't mean for the during of my tenure of employment there. At some point, they will need me to be where I was before I was hurt. This will probably never happen due to loss of function and decreased mobility. It may or may not return from what the doc tells me. What if after all the time of being off and healing, going back to work under restrictions and continuing the healing process, I never get to where I can perform the essential functions of this job?

              Its a pretty tough spot to be in because I have been doing this kind of work all my life.


              • #8
                If both you and your employer qualify for FMLA, and if your employer knows that you have a condition that meets the definition of a serious health condition under the statute, then they are required by law to apply FMLA protections whether you apply for it or not.

                If you can perform the essential functions of your condition with an accomodation, then they have to offer an accomodation. If you never get back to where you can do the job without accomodation, but there is an accomodation that they can provide without an undue hardship, then they have to provide the accomodation. They CAN periodically change the accomodation (as long as it works) and they can periodically investigate whether or not you still need one. But if there is no undue hardship to providing an accomodation and you need one, they must do it. For as long as you need it. Even if that's for the duration of your tenure with them.

                ONLY if there is no accomodation that they can provide without undue hardship and you cannot perform the essential functions without one, is the employer let off the requirements of the ADA.

                This assumes that your condition meets the definition of a covered disability.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                • #9
                  I guess the bottom line is......should I seek legal counsel even if I don't change jobs?


                  • #10
                    If you are concerned that your current employer can take legal action against you for not returning to work, stop worrying. They cannot take any legal action against you, nor require you to return any benefits you have received.

                    If this is not the reason you are thinking of consulting an attorney, can you please clarify so that I can answer the question you are asking and not something I assume.

                    Please note that I would never tell any one NOT to consult legal counsel if they have a concern. But I need a little more clarity about your concern before I can advise if it is necessary or not.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                    • #11
                      Those were my concerns and what you said makes me feel better about my situation. I really didn't foresee the problem of any litigation occurring, just retribution for their time spent holding out for me.

                      Having never ever been in this situation before in my life, I probably am somewhat the exception, maybe not. I work from home sporadically on my laptop, providing any support that I can. I'm not so displaced from work that they haven't heard from me in 6 months.

                      Is what you said earlier straight out of an FMLA or disability laws guidebook? The reason I ask is because I want know who is the person/s that mitigates those requiirements in terms of my accomodations and restrictions? Who are/ what is the ADA and who is undue hardship referring to? Myself or for the company I work for? Who defines what an undue hardship is? See what I mean about seeking legal counsel........just want to have all my bases covered.


                      • #12
                        I wasn't quoting a guidebook, no, but I've provided those answers so many times (here and elsewhere) I suppose I've gotten to where it sounds like one. But I'm a good paraphraser

                        FMLA and the ADA are two different laws with two different functions, that occasionally work in conjunction with each other. FMLA relates to medical leave. The qualifications for FMLA are as follows:

                        1.) The employer has 50 or more employees within 75 miles of your location
                        2.) You have worked for this employer for a minimum of 12 months (the 12 months in this case need not be consecutive)
                        3.) In the 12 consecutive months immediately preceding your leave (in this case the 12 months DO have to be consecutive) you have worked for this employer no less than 1,250 hours.
                        4.) You or a qualified dependent has a serious health condition as defined by the statute

                        FMLA entitles you to up to 12 weeks of unpaid medical leave with your job protected. The leave can be taken all at once or intermittantly, depending on what your doctor says you need. If you and your employer both qualify for FMLA as above and your doctor has certified the need for FMLA, it CANNOT be denied by the employer. (They CAN ask for a second opinion at their own expense, and, if the two doctors differ, a third. The third doctor's opinion in effect becomes binding, though that might be an overly simplistic way of putting it.) Barring an enforceable contract or CBA, or a state law to the contrary (I'm working from memory here but I don't believe KY has one), there are NO circumstances when the law requires the employer to hold the employee's job for longer than 12 weeks. But as long as the employee is able to return to duty or or before week 13, day 1, the employee is guaranteed either their own job back or one that is equal in all respects. The regulatory agency for FMLA is the US DOL.

                        The ADA refers to disabilities, as defined by the statute. A covered disability is one that is permanent or long term, which affects a major life function. Not every serious health condition as referred to under FMLA is a disability under the ADA - not every disability under the ADA is a serious health condition. Examples; pneumonia can be a serious health condition but not a disability; a missing leg can be a disability but not a serious health condition; asthma can be both. The ONLY condition that is currently considered a disabilty automatically, simply by virtue of its existance, is HIV/AIDS. EVERY other condition, without exception, has to be looked at on a case by case basis. One person with condition x can be considered disabled where another person with the same condition might not be. It depends on how the disabilty affects the individual. What is considered a reasonable accomodation is also variable. It might be reasonable to allow a data entry operator to work from home; it would not necessarily be reasonable to allow the receptionist to do so. What is considered an undue hardship for a mom-and-pop grocery might not be for IBM. The employer determines what is an undue hardship but must be able to defend their position to the EEOC, which is the regulatory agency for the ADA. If the EEOC does not agree that the accomodation would create an undue hardship, it will not go well for the employer. The employer needs to work with the employee to determine what accomodation might be needed or available, but the employee is not guaranteed the accomodation they want or even the one the doctor recommends; only one that works. Unlike FMLA, where the employer is responsible for implementing it when needed whether the employee requests it or not (assuming they have enough information to know that FMLA is a possibility), the employer should not, in most cases, assume that an accomodation is needed without the employee's request. A short extension of a leave might, in some cases, be considered a reasonable accomodation, but the purpose of the ADA is to level the playing field so that the employee can work, not to get or keep them out of work.

                        Don't confuse the word, disability, as used by the ADA, with the word, disability, as used by a policy of income replacement (short or long term). Not every "disability" that qualifies you for STD or LTD benefits is going to be a "disability" as used by the ADA.

                        Clear as mud?
                        Last edited by cbg; 10-20-2007, 11:15 PM.
                        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                        • #13
                          Now it gets good.......

                          In the meantime, I had an interview with another company. They set up a drug-screen and physical after the first interview. I suppose I should mention that they are an EOE.

                          I went to the physical, took it and passed. However, I did have to disclose my health information to the doctor (or organization, as it were) and because of this I was put on a "hold" status instead of "passing". I was frank with the doctor regarding my situation and he told me that it would basically be a formality and buncha red tape to have the problem solved. The things he told me to do were:

                          A) call the company and have them give me detailed job description
                          B) give the job description to my physician and let him sign off on it if he found me to be capable of doing the work(which he would have because it is not a labor intensive position like my current job)
                          C) return said "sign off" to the medical center and have the doctor take me out of the "hold" status and process the paperwork as "passed".

                          Here's what happened.

                          I called the company and asked the HR person to please send me a copy of the job description. E-mail, I could pick it up, by mail, whatever.

                          I have not heard from them since. Because they didn't even give me a chance to validate my situation, is this discrimination?

                          If so, what are my possible avenues of retaliation?
                          Last edited by squeakyD; 11-01-2007, 01:22 PM.


                          • #14
                            How long ago did you request the JD?
                            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                            • #15
                              It was two weeks ago. Haven't heard from them since.


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