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Ohio Terminated for Performance Issues and Dishonesty While on FMLA Ohio

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  • Ohio Terminated for Performance Issues and Dishonesty While on FMLA Ohio

    I am a board certified Hospice and Palliative Care RN who formerly worked at an inpatient hospice. In April I was taken to the ER d/t a minor head trauma and I was diagnosed with probable MS (multiple sclerosis). The doc who admitted me to the hospital for further observation/testing was the partner of my family doctor. I'd never met the partner and had to meet him for the first time after I was released to get a fit for duty slip. This doctor had no knowledge of me or how to fill out an intermittent FMLA. He was trying to answer all the questions and where it said to "estimate" the time I'd need off, he wrote 1 time per month for 3 days.

    The first month back to work, my attendance was perfect, I was able to get some tests done. The second month, I had another flare up and began missing days here and there. Apparently I asked for a day off to see the above doctor and I slept past the appointment. I later called his office, apologized and tried to get in later that day but couldn't. Fatigue is a big thing with MS. Since I made my own appointments, drove myself to them, and worked the night shift (my regular doc was treating me for sleep disorder). I felt awful that day and since I already had it off, decided to go back to sleep as when I'm tired, I'm more prone to injuring myself (last year before I knew what my problem was, I knocked out 4 front teeth falling down the stairs!)

    Fast forward to about 3 weeks ago, the HR person began calling me and asking me why I was absent on certain days. I'd already spoken to a friend who is a lawyer and she said it was none of their business and if I wanted to tell them I was asleep in bed, that was OK. But the HR person told me she was disallowing all my FMLA days for June and July until I could come up with doctor's notes or tell her what I was doing. Also, she told me she KNEW I "canceled" my appointment with the doc in the previous paragraph. She called me while I was gone for 4 days. I had asked for 4 days off in advance as I started having more symptoms. I don't know how she obtained this information. The doc's office denies that they would ever tell anyone this. HIPPA and all.

    I began working on the dates and couldn't remember. I didn't even remember having the appointment or calling the doctor. I went there in person and asked them what happened and they told me. I asked them for a letter explaining that because the way the HR person said it, it was like I planned the whole thing. It was just a symptom of my disease. HR said I should have called them since I didn't keep the appointment and tell them I was available to work. I didn't know that was a requirement. She said I was "dishonest". I would guess I was just fatigued and went back to bed.

    To cut to the chase...she and the director fired me over the phone. I was in between tests at a nearby hospital and was waiting 2 hours for my second dye test of the day to uptake into my bones. After I hung up, I returned to the hospital and completed my test.

    I hired a lawyer 2 days later and she sent a letter to find out their position. They said a family had complained because I double checked a patient's medications when she asked about them (we aren't allowed to carry a drug record into their rooms as they do in hospitals) and the patient became fearful. The patient had a pysch history and was paranoid before I even got there. The family wasn't present so don't know how they determined what had happened. And normally, something like this is not a big deal. Families get freaky when a loved one is dying. Another nurse there had the family complain because she was "too cheerful". Not a big deal, she was assigned to another wing.

    But the big thing HR was hanging her hat on was that I was "dishonest" because I didn't tell them I missed an appointment.

    Although I'm an "at will" employee, I thought they would throw a little severance pay my way as they like to represent themselves to the community as compassionate and caring. I worked there for 6 years and I can tell you that the administration is as cut throat and cold as they come.

    Also, my supervisor had told one of my co-workers she thought I had MS long before I initially went to the hospital. The supervisor also claims she talked to HR about talking to me about it and they said "no". I know of one nurse who had a similar condition and the same supervisor talked about it with her co-workers and this nurse threatened to sue and they settled out of court.

    At the point I was fired, I had 12 days of insurance remaining so I had to step up all my testing and even wangled an exam at the Cleveland Clinic on the last day I was insured, where I was diagnosed as definitely MS and they wanted to start treatment the following week. I knew I would have no health insurance and hadn't had a full pay check for 2 months, so now I'm sitting in limbo and not being treated. The lawyer told me not to apply for unemployment as one has to be job hunting and if I'm unfit to work, how can I look for a job?

    I was one of their last full time night nurses and I noticed they had let a lot of other middle aged nurses go and began hiring part-time nurses. These jobs were never posted internally and everyday I'd see a new part-timer, always much younger, show up.

    I had a disability policy I paid $100 a month for 6 years thru this employer, but after I was terminated, it was no longer in effect. I'm not officially disabled yet so I can't get government disability. The lawyer told me the other day that she was working on getting me "a month or two" more of insurance on their group insurance and putting me on the payroll without paying me so I could collect the disability insurance I paid for.

    I thought this was really a kick in the butt to cut me lose like that, knowing I was sick, building a case to disallow my FMLA and labeling me dishonest. My lawyer even said they were reporting me to the board of nursing. For what I don't know. I read the nurse practice act for Ohio and I haven't done anything remotely related to anything that could be investigated. I told my lawyer that if they did that after I retained her, I would consider that retaliation. I told her I bet they were bluffing. But it seems to me that if they are doing that, apparently terminating me, cutting my health insurance and not allowing me to collect on a policy I paid for, they are also trying to strip me of my profession so that I can't generate some income even part-time.

    I feel she's not being aggressive enough and at our first meeting, I told her what outcome I was looking for...3 months severance pay and health and disability insurance plus a neutral or favorable letter of reference. I got the COBRA papers which asks for $1200 a month to cover me as it did while employed. Yeah, right, like I can afford that at this point.

    So my cash flow is stalled as I can't seek work and can't use any benefits for a situation like this. I am in need of treatment which may restore me to my former good least for a while.

    This is especially devastating to me as I put myself through college at 44 years of age after a really ugly divorce. I have no relatives living. My whole life I dreamed of being a nurse. It is very disillusioning though, to find out how arrogant and uncaring the profession is. There's a saying that "nurses eat their young". Well, guess what, they eat their old, too!

    Does it sound like I'm asking for too much? Is my attorney being too namby pamby about this? Was it really dishonest, under the circumstances, not to tell my employer I missed my doc's appointment d/t fatigue? When I told my lawyer that the note from the doc proved it wasn't something I premeditated, she said it didn't matter. (Then why ask me to get the note from the doc? She also asked for a revised FMLA which another health care provider who saw me during this period produced and lots of other paperwork which seems to be of no importance when I produce it. It's been exhausting for me. I feel as though I've been asked to deliver the witches broom a few times over. Now she's requesting all my medical records from all my health care providers. Why, I don't know. I'm just getting fed up. To be kicked to the curb like this with my health failing by a hospice of all places!

    Any opinions, advice, or information would be greatly appreciated! Sorry this was such a long post, but there's so many details, I just tried to give the main issues.

  • #2
    You cannot be terminated because you are using FMLA, however, you can be terminated in spite of it. Courts have consistently held that employees using FMLA must follow any and all attendance policies of the employer (i.e., call in requirements). If someone not on FMLA leave requested a day off for a doctor's appointment and then failed to attend it would be disciplined, then it's not discrimination to discipline you.

    If you feel that the grounds under which you were terminated was a pretext, your recourse is to file a complaint with the U.S. Department of Labor, which oversees FMLA.

    Whether you have access to the disability insurance is dependent on the terms of the policy. Whether the employer can give you additional months of health insurance without your being employer is also dependent on the terms of the policy.
    I am not able to respond to private messages. Thanks!


    • #3
      Thanks for response

      Thanks for your comments. I always did call far ahead of time if I knew I was unable to work, so they could find a replacement. Apparently this is a day I had asked to be off because of an appointment. They knew far in advance and had time to replace me. I was also out of sick time, so wasn't being paid.

      MS is an unpredictable disease and no two cases are the same, however, during a flare up, which I was was having, there are a few symptoms that usually are present. One is fatigue, also depression and another is forgetfulness. I also usually have traveling pains as well, slur my words and sometimes stagger and trip over my own feet during a flare up. As I've had more experience with it now, I've noticed that when I awaken and feel like this, it hasn't been unusual for me to stay in bed for 2-3 days and sleep. If I can be treated now, those symptoms hopefully will disappear and the flare ups might only happen once every few years.

      I can't find anything in the FMLA papers that says if I miss a doctor's appointment while I'm off for the day, that I have to call and tell them I'm available to work. They already knew I wouldn't be coming to work that day/night. Let's say I had transient ischemic attacks (temporary blockage of air to the brain) it does the same thing as far as the person being unable to pull themselves together and carry on with their day. That can also be managed with meds and sometimes surgery. But if you're having every test in the book before you get treated, how could anyone fault that person for being a victim of their symptoms? I don't remember that day, I don't remember even calling the doctor to apologize (I found out when I went there AND ASKED). And most of the employees there, except for HR, have some kind of medical training, I can't believe they were unaware of MS symptomology. I am also having a hard time with HR saying I was dishonest. That implies to me a certain amount of premeditation, which I felt the note from the doc proved that I called afterwards, not before, and asked if there were anyway I could see him that day still. Were I dishonest, there would have been no doctor's appointment to miss in the first place!

      Also, how in the world did she get this information? And why did she pick that day out of all others? She claims she has a right to call my doctor's office and ask. I understand that she can ask ME to produce evidence of my need to continue the FMLA, but can she call my doctor's office and ask specific questions? Most docs and their staff are so paranoid of violating HIPPA laws, they'll only release info with a court order, generally not to anyone but the patient and the office swears they never spoke to her.

      And how is my health the business of anyone I work with? How can my supervisor tell someone on the same employee level as myself that she thought I had MS before I knew it myself? That seems unprofessional and illegal. If I thought my supervisor had tertiary syphilis, could I broadcast that to others I work with? Even if I was right, that's nobody's business and neither my supervisor, nor myself are licensed to diagnose anything. I was not her patient, either. Of course that one employee spread the word and co-workers started trying to "name the disease" while I was hospitalized. One told me she put her money on Parkinson's.


      • #4
        It doesn't have to say in your FMLA paperwork that if you miss a doctor's appointment for which you've scheduled FMLA leave that you need to call in. The issue is whether it's part of your employer's normal attendance policy. As I noted, the question is how would the employer treat a non-FMLA who requested a day off to go to the dentist and then didn't go.

        If you work in the health field, you should know it's HIPAA, not HIPPA. Employers are generally not covered by HIPAA unless they are insurance companies and health care providers themselves and then not in all circumstances. It is not a violation of HIPAA for employers to speculate about an employee's health if an employee is showing symptoms of something. It may be unprofessional, but it's not illegal. If you were showing symptoms to the point where your coworkers noticed, then it is potentially an issue, given that you are taking care of patients.

        If you feel that our rights under HIPAA were violated, your recourse is to report the employer to the agency that oversees HIPAA, the Department of Health and Human Services.
        I am not able to respond to private messages. Thanks!


        • #5
          Good Point

          If you work in the health field, you should know it's HIPAA, not HIPPA.

          Sorry. You're right. Yes, I do work in the health field. I'm appalled at times reading other nurses and social workers notes which misspell common words and acronyms. Always try not to go there myself.

          You made a good point about how would they treat a non fmla employee. If I took the day off for a doc's appt and awakened with the flu, too sick to drive myself to the appt, I'd reschedule the for another day and still take that day off d/t illness. If questioned later about it, I'd just tell whoever the truth and that would be the end of it. Thanks for making me think through that one. I'm obviously being singled out for whatever reason.


          • #6
            It is also legal and in fact required that your employer verify the reason you are off on a given day so that they are not charging you for FMLA on days you were not off for a qualifying reason and are properly designating days that you are. It is also legal to call your doctor's office and ask if you had an appointment.

            Unless your FMLA Certification indicated that you needed to be off work due to fatigue, the day you missed the appointment and slept would not count as FMLA. It sounds like your doctor only certified you to be off for appointments so that is what you were covered for under FMLA. It is dishonest to tell your employer that you are for for a FMLA qualifying doctor's appointment and then take off for a non-FMLA qualifying resaon and not inform them. The proper thing to do would have been to call your employer and let them know that the reason you were off changed. You had the where with all to contact the doctor so it is not unreasonable to expect that you would contact your employer as well.

            As for contacting the Nursing Board, that is largely out of your and their hands. I don't know what they reported but if there was a complaint by a patient it may not have been their choice. If the Nursing Board clears you, you are good to go.

            Asking for 3 months of severance and continued insurance is pretty unreasonable if there isn't a practice of doing this and if you were fired for cause. I'd be shocked if you received it. You can always ask but I would not fault your attorney if told no. Doctoring the dates of your employment so that you can collect insurance benefits is fraud and comes with major penalties. If this is honestly what your lawyer is suggesting, I'd consider finding another one.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


            • #7
              From the Standard (§ 825.307)

              (a) Clarification and authentication. If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification) after the employer has given the employee an opportunity to cure any deficiencies as set forth in §825.305(c). To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances, however, may the employee's direct supervisor contact the employee's health care provider. For purposes of these regulations, “authentication” means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document; no additional medical information may be requested. “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask health care providers for additional information beyond that required by the certification form. The requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule ( see 45 CFR parts 160 and 164), which governs the privacy of individually-identifiable health information created or held by HIPAA-covered entities, must be satisfied when individually-identifiable health information of an employee is shared with an employer by a HIPAA-covered health care provider. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. See §825.305(d). It is the employee's responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.


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