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Being threatened termination while on medical leave California

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  • Being threatened termination while on medical leave California

    I have been on medical leave for approximately 6 months, I never filled out ant FMLA paperwork with my employer. I filled out a claim for SDI benefits, My employer informed via the telephone that I had X amount of days to return to work or I would be terminated. They said my FMLA ran out, I never filled out any FMLA with the employer. I am awaiting a letter explaining my options, from my employer. I am in need of surgery and awaiting two more doctor appointments, but I am also being forced to return to work so I don't lose my job, benefits, etc. I also never received any paperwork from my employer stating that my FMLA ran out, the only notification I received was a phone call about 24 hours ago, now 6 months in. Is this right? Do I have any rights?

  • #2
    FMLA is not optional. If you, the employer and your medical condition all qualify, your employer is required by law to at least conditionally apply FMLA.

    Disability benefits are not leave - they are how you get paid while you are on leave. Those benefits can and do run consecutively with FMLA. I don't know what your objection to FMLA is - with FMLA you have 12 weeks of job protected leave - without FMLA you have no job protected leave and your employer doesn't have to provide any medical leave at all. (Some specific municipalities in CA do have sick leave requirements.)

    But no matter how you slice it, 6 months is more leave than the law generally requires that they offer you.

    Now, with that said, I am asking these questions for a reason.

    What is the nature of your medical condition? How long does your doctor think it will be before you are able to return to work?
    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.

    Comment


    • #3
      FEHA / ADA Accommodations Might Apply to Your Situation

      Your rights depend a lot on the reasons for your FMLA. If you have a medical condition that qualifies as a diability within the meaning of ADA or FEHA, then you are likely entitled to extended leave as an accommodation. It is critical that you request that kind of accommodation as soon as possible and before you are terminated. If the employer refuses to extend your leave and grant that accommodation, then you might have a legitimate wrongful termination claim.

      This might be a very good time to also consult a reputable employment attorney in your area to discuss how to best handle your situation.

      Thanks,

      Arkady Itkin
      Last edited by cbg; 01-26-2013, 01:10 PM.
      Arkady Itkin
      Attorney at Law
      San Francisco / Sacramento / San Jose
      http://www.arkadylaw.com

      Comment


      • #4
        Which is why I asked the questions I did...
        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.

        Comment


        • #5
          Originally posted by cbg View Post
          FMLA is not optional. If you, the employer and your medical condition all qualify, your employer is required by law to at least conditionally apply FMLA.

          Disability benefits are not leave - they are how you get paid while you are on leave. Those benefits can and do run consecutively with FMLA. I don't know what your objection to FMLA is - with FMLA you have 12 weeks of job protected leave - without FMLA you have no job protected leave and your employer doesn't have to provide any medical leave at all. (Some specific municipalities in CA do have sick leave requirements.)

          But no matter how you slice it, 6 months is more leave than the law generally requires that they offer you.

          Now, with that said, I am asking these questions for a reason.

          What is the nature of your medical condition? How long does your doctor think it will be before you are able to return to work?
          I have arthritis in all 3 of ankle joints in right ankle, Doctor says April 2013 return, pending arthoscopic surgery. I am unable to stand long periods of time without sitting, walking around aggravates my ankle joint. Thank you

          Comment


          • #6
            [QUOTE=arkadylaw;1186296]Your rights depend a lot on the reasons for your FMLA. If you have a medical condition that qualifies as a diability within the meaning of ADA or FEHA, then you are likely entitled to extended leave as an accommodation. It is critical that you request that kind of accommodation as soon as possible and before you are terminated. If the employer refuses to extend your leave and grant that accommodation, then you might have a legitimate wrongful termination claim.

            This might be a very good time to also consult a reputable employment attorney in your area to discuss how to best handle your situation.

            Thanks,

            Arkady Itkin

            Thank you

            I am new to disability laws I apologize, do I ask my doctor for ADA or FEHA or my HR director?

            Comment


            • #7
              Originally posted by bmcruise73 View Post
              Thank you

              I am new to disability laws I apologize, do I ask my doctor for ADA or FEHA or my HR director?
              I have arthritis in all 3 joints in my right ankle, a lot of pain and swelling when standing for long durations causing me to become unable to walk.

              Comment


              • #8
                Originally posted by bmcruise73 View Post
                I have arthritis in all 3 joints in my right ankle, a lot of pain and swelling when standing for long durations causing me to become unable to walk.
                This is clearly a qualifying disability under ADA and FEHA (fair employment and housing act). Depending upon your position and job duties and the size of the company for which you are working for, you are likely entitled to an extended medical leave. There is no bright line rule of how long that leave is, but some large companies out there, including UPS and AT&T have been sued for having a rigid one-year maximum leave policy, as the courts have found those kinds of policies to be in violation of disability laws.
                Last edited by cbg; 01-26-2013, 02:19 PM.
                Arkady Itkin
                Attorney at Law
                San Francisco / Sacramento / San Jose
                http://www.arkadylaw.com

                Comment


                • #9
                  Originally posted by arkadylaw View Post
                  This is clearly a qualifying disability under ADA and FEHA (fair employment and housing act). Depending upon your position and job duties and the size of the company for which you are working for, you are likely entitled to an extended medical leave. There is no bright line rule of how long that leave is, but some large companies out there, including UPS and AT&T have been sued for having a rigid one-year maximum leave policy, as the courts have found those kinds of policies to be in violation of disability laws.
                  Is there any way possible to ask for more time without losing my job, I am awaiting an appointment with a rheaumatologist mid Feb, to do bloodwork and see if I have any serious forms of arthritis that relate to my symptoms. Pending what they find, my doctor was going to schedule a surgery, with a rehab time of 3 to 4 weeks if I opt to have the surgery. If my doctor releases me to work with restrictions does my employer have to honor it by law? Restrictions might look like frequent rest periods, I work 13 hour shifts and standing long periods is tough. That's why they took me off work, unable to stand or walk for long periods.

                  Thank you

                  Comment


                  • #10
                    You need to ask your employer for an extension of the leave, using as a basis your rights for an accommodation under the ADA. While the law does not require it, it is best if you use those exact words - an accommodation under the ADA - so that there can be no misunderstanding as to what rights you are invoking.
                    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.

                    Comment


                    • #11
                      Employer cancelled my health insurance without notification

                      Originally posted by arkadylaw View Post
                      This is clearly a qualifying disability under ADA and FEHA (fair employment and housing act). Depending upon your position and job duties and the size of the company for which you are working for, you are likely entitled to an extended medical leave. There is no bright line rule of how long that leave is, but some large companies out there, including UPS and AT&T have been sued for having a rigid one-year maximum leave policy, as the courts have found those kinds of policies to be in violation of disability laws.
                      I just found out today that my employer cancelled my health insurance without notification of any chnage to my coverage or my status. I have been on leave for about 6 months, the only reason I found out was because I was trying to obtain a note to return back to work as requested by my employer. The doctor told me there was an issue with the insurance on file, it was cancelled 12-31-12, I never received any paperwork about it. ow I can't get my doctors note and the company is goin to term me. Is that legal in california?

                      Thank you

                      Comment


                      • #12
                        Did the employer cancel your insurance only or all insurance for all employees? Legally this would be two very different actions.
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

                        Comment


                        • #13
                          Originally posted by DAW View Post
                          Did the employer cancel your insurance only or all insurance for all employees? Legally this would be two very different actions.
                          Im unaware at this time, I have made calls to my HR, no response yet. I have talked to other RGM's they said no changes were made to their policies and they had the same coverage. The worst part is I can't provide a clearance from my doctor because I have no insurance, they wont see me.
                          Thank you

                          Comment


                          • #14
                            Just one point:

                            Assuming that the plan document says so, once your FMLA runs out your employer may, legally, terminate your health insurance. They are obligated to keep it up through the period of your FMLA, but only the first 12 weeks of your leave is FMLA. After that the law only cares that they follow what the plan document says; they are no longer obligated by law to continue your insurance as long as they follow the plan document.

                            If this is why the insurance was cancelled, you will be eligible for COBRA, and they are still within the legal time frame to notify you. With a coverage term date of January 31, they legally have until February 13 to notify you of your right to COBRA.
                            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.

                            Comment


                            • #15
                              Originally posted by cbg View Post
                              Just one point:

                              Assuming that the plan document says so, once your FMLA runs out your employer may, legally, terminate your health insurance. They are obligated to keep it up through the period of your FMLA, but only the first 12 weeks of your leave is FMLA. After that the law only cares that they follow what the plan document says; they are no longer obligated by law to continue your insurance as long as they follow the plan document.

                              If this is why the insurance was cancelled, you will be eligible for COBRA, and they are still within the legal time frame to notify you. With a coverage term date of January 31, they legally have until February 13 to notify you of your right to COBRA.
                              I am in the process of going back to work with restrictions from my doctor, If the company accepts the restrictions and I go back to work how long does an employee have to work before becoming eligible for fmla leave again? I am in need of a surgery and can't get it done now.

                              Comment

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