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  1. #1

    Default Fired while on medical leave

    During the last 2 months I have been on medical leave after having a seizure followed by brain surgery. The doctor told me I would be unable to drive for at least 3 months and as I work at a sales job where I have to travel I was unable to work. During the entire time I was on leave and recovering I was called dozens of times about customer service issues and my manager calling asking when I would be back at work. He insisted on more medical documentation about my surgery as though he didnt believe such a long absence was necessary.
    A few days ago I recieved a call from my district manager letting me know they were terminating my employment for a mistake on some paperwork I had made before I went on leave. I am looking to confirm the following before I contact an attorney:

    1. My employer is not allowed to contact me during leave, let alone harassingly
    2. They must take up all problems with me when I return to work and cannot discuss or terminate me while im on medical leave.

    There are other issues as well, but there are the big 2. Any help would be great.

    Thanks

  2. #2
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    16,889

    Default Re: Fired while on medical leave

    Sorry, but both your pre-suppositions are flawed. It is a myth that being on medical leave gives you a blanket protection that is open-ended.

    Barring a state law or a binding employment contract that specifically says otherwise, the LONGEST than an employer is required to hold your job while on medical leave is 12 weeks, and they are only required to hold it that long if FMLA applies. FMLA applies when ALL of the following are true:

    1.) The employer has 50 or more employees within 75 miles of your location
    2.) You have worked for this employer for no less than 12 months
    3.) In the 12 months immediately preceding your leave, you worked no less than 1,250 hours
    4.) You or a qualified family member have an illness or injury that qualifies as a "serious health condition" as defined by the statute.

    If even one of the above criteria is not true, FMLA does not apply.

    If FMLA has been exhausted, or if FMLA does not apply, you can legally be terminated despite being on medical leave, regardless of the legitimacy of the need for additional leave. Again, barring a state law or binding employment contract that specifically says otherwise, there are NO circumstances when an employer is legally bound to hold your job any longer than 12 weeks.

    IF AND ONLY IF FMLA applies, contacting you about customer service issues MIGHT be a violation, but it is a minor violation at best. EVEN IF FMLA applies, they are entitled to contact you to find out when you are coming back. They ARE entitled to medical verification of your illness or injury. They may request re-certification from your doctor once every 30 days if FMLA applies; if FMLA does not apply, they may request recertification as often as they like.

    Under FMLA, you are protected from being fired for excessive absences (as long as the FMLA is still in place) and you cannot be fired BECAUSE you applied for FMLA. However, FMLA does NOT protect you from being fired for reasons that are unconnected to the leave. If you would have been fired for the reason in question reason regardless of the fact that you were on FMLA, you can be fired while on FMLA. Some employers will choose to wait until the FMLA time is up before notifying you of the termination but that is company policy, not law. If FMLA does not apply, being on medical leave provides you with no job protection whatsoever.

    Nothing whatsoever in the law prohibits them from "discussing you", whatever that means, while you are on medical leave, regardless of whether FMLA applies or not.

  3. #3

    Default Re: Fired while on medical leave

    And if all the FMLA rules apply? Appolagies for the horrible post it was late when I made it.

    As I stated my manager would call almost daily asking when I would return back to work or to bother me with customer issues. On top of this he DEMANDED that I come in for one of our weekly monday meetings and threatened my job if I did not.

    We earn a residual income and it is my belief that they were unwilling to pay it while I was on leave. I had been with the company for 4 years and had never had any real problems. At best there were a few mistakes on paperwork while I was rushed or while I was on probation during my first 90 days.

    Thanks again for all the help. Glad I ran into this site.

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    16,889

    Default Re: Fired while on medical leave

    If FMLA applies, then you cannot be fired BECAUSE OF ABSENCES until it expires. They CAN call and ask when you are coming back. They CAN ask for medical verification. They CANNOT demand that you come in to work for a meeting. They CAN fire you on week 13, day 1.

    FMLA is, by definition, unpaid leave.

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