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  1. #1
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    Mar 2010
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    Exclamation Is it Legal to Fire a Disabled Person in the Middle of Recovery

    Good Evening, My question is, "is it legal to fire someone who becomes physically disabled when they are in the middle of recovery?"

  2. #2
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    Sep 2005
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    Default Re: Is it Legal to Fire a Disabled Person in the Middle of Recovery

    Maybe, depending upon the full facts and laws of the jurisdiction.

    I just noticed your other thread. Did you miss this?
    Quote Quoting PattyPA
    View Post
    Once your FMLA is exhausted, the employer has no legal requirement to keep you as an employee; a particular notice period is not required by law.

    What is your medical status without the surgery? With the surgery? Are you able to work at ALL, with or without accommodations?

  3. #3
    Join Date
    Mar 2008
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    Default Re: Is it Legal to Fire a Disabled Person in the Middle of Recovery

    Quote Quoting imayeoman
    View Post
    Good Evening, My question is, "is it legal to fire someone who becomes physically disabled when they are in the middle of recovery?"

    You posted a few threads here, and the answer is "YES, it is not illegal".

    I know this because I worked at a large multinational, a co-worker was recovering, but the department reorganized while he was gone, and though he recovered, was able to get doctor's notes saying he's recovering. I spoke to him and he said he heard he can't be fired while recovering.

    This dragged on for a month or two, till the company wised up and let him go. He started protesting it was unfair. Apparently, what he heard was wrong.

    Also, holding a job open where there is NO timeline for an employee's return is very difficult for an employer, which seems to be the case here. I had a business, I got one guy out on workman's comp, and hired temps to cover while he was out. I can tell you that filling positions with temps under these conditions is next to impossible because only people desperate for a job would take it, and all you need is a phone call that the other guy is coming back, and the temp is gone. I can't even promise the job for so many weeks.

    So, who needs that??

    Briefly, I was told the first temp was let go on his last job, and we decided to give him a try. Turns out he did a terrible job, and then found out he was let go by his own dad.

    The second temp was a Vet, with some "traumatic stress" disorders. I didn't know what this meant till he would be out about two days a week. The third temp was a "homeless" guy needing a chance, where I had no better luck.

    Meanwhile my customers had had enough of why work wasn't done. Can I claim the reason is for "being fair to someone out on WC"??

    Finally, I had to bite the bullet and replace the guy who was out originally. It is not illegal, and I had to decide the first priority was to be fair to my customers.

    Also, I see from your other post is that your problem is really that "you don't want to change doctors", though your are covered under the VA. Let me say in that case, get on over to the VA right away and get started.

    I don't want to start a "healthcare debate" on this thread, but when my daughter was 2 girls old, she had a problem and was treated by a pediatrician under my company's PPO plan, and it was my own company. Subsequently due to 15% increases every year in my premiums, I had to switch over to a cheaper HMO plan.

    Unfortunately the pediatrician said he is not under this plan, it just pays too little, so we had to switch doctors for my two year old in the middle of her treatment.

    I am angry, and I am not sure who I am angry at. Is it the doctor?? Is it our wonderful health care system claimed by some to be the best in the world??

    Sir, please be thankful there is a VA and you can switch doctors!!

    Let me conclude by saying I'm glad while I'm not an Obama fan, I voted Republican, I have struggled with health care issues as a businessman, particularly for my little girl as I mentioned, I am glad that something is being done on it.

    And lets be thankful. You and I are fortunate that you can go to the VA, and I currently have a nice PPO plan, paid by my employer, the municipality, we're not out on the streets with a tin cup waiting for handouts from "tea bag" protesters.

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    17,961

    Default Re: Is it Legal to Fire a Disabled Person in the Middle of Recovery

    Let me make this as clear as I possibly can.

    Short of a state law or legally binding and enforceable contract that specifically says otherwise, there are no circumstances whatsoever under which the law requires the employer to hold the job of an employee on medical leave one minute past the expiration of FMLA. There are some situations in which a SHORT extension of a leave might be a reasonable accomodation under the ADA IF the ADA applies, but only if that extension would allow the employee to return to work and perform ALL the essential functions of their position. There are NO across the board exceptions for "being disabled", being a veteran, being a member of a so-called protected group, being in recovery, being under a doctor's care, or any other exceptions you care to come up with. Once FMLA is up, with limited ADA exceptions, that is it and the employer can legally fire you.

    Repeatedly asking the same question is not going to change the answer.

  5. #5
    Join Date
    Mar 2010
    Location
    California
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    Default Re: Is it Legal to Fire a Disabled Person in the Middle of Recovery

    Quote Quoting cbg
    View Post
    Let me make this as clear as I possibly can.

    Short of a state law or legally binding and enforceable contract that specifically says otherwise, there are no circumstances whatsoever under which the law requires the employer to hold the job of an employee on medical leave one minute past the expiration of FMLA. There are some situations in which a SHORT extension of a leave might be a reasonable accomodation under the ADA IF the ADA applies, but only if that extension would allow the employee to return to work and perform ALL the essential functions of their position. There are NO across the board exceptions for "being disabled", being a veteran, being a member of a so-called protected group, being in recovery, being under a doctor's care, or any other exceptions you care to come up with. Once FMLA is up, with limited ADA exceptions, that is it and the employer can legally fire you.

    Repeatedly asking the same question is not going to change the answer.
    CBG - I repeatedly asked the same question not to receive a different answer but by accident because I am not familiar with this site. I meant to reply on my original question not create a new thread. I am not sure why you would post something negative like that when I am just looking for help and have not been rude in any way.

    In the past 13 years I was in the military for over 10 of them so I am not familiar with the rules of civilian employment or health care. I came to this site looking for help because asides from google, I don't know where to go and since I am homebound my resources are limited to the internet and the phone.

    I would not even ask the question if someone hadn't suggested I research it, so I am doing just that because the only thing I want is to finish my recovery in hopes to lead a normal life and go back to work.

    I asked the question again (again, meant for the original thread) because my question was answered by a question that would not have any impact on the answer and I did not want to get off track.

    As for the "so-called protected group" I am a 100% disabled veteran and at times there are laws that help with employment, that is why I mentioned it. Because again, I am not familiar with Civilian Employment.

    I am not able to walk more than a couple minutes at a time the same goes with sitting or standing due to the plates in my back compressing the nerves that run down my legs.

    I would never expect a person or a company to hold my job, I understand that it is a business. I just wanted to keep my health insurance until I was able to function without pain.

    Yes, I am eligible for VA. I have been through the system and after the first year of going through them and being treated like I was a number rather than a person, I filed a complaint and went through that system to try to receive another provider through the VA. After waiting for weeks to be able to see another provider (since I was attached to that one, they would not allow me to see any others) I started treatment through my insurance.

    I do not have a problem going through the VA and I do feel fortunate to have that option. However, I would like to finish my recovery with the original health care providers I started this process with so I do not have to start all over with Physical Therapy, Therapy, Orthopedics and Primary Care.

    I am sure there are plenty of people who are looking for a way to make a quick buck or are lazy but that is not everyone.

    I want to be able to move forward with the spine stimulator implant as planned (that was scheduled for Thursday but had to be canceled due to lack of insurance) in hopes that it will alleviate my pain and allow me to function like a "normal" 30 year old woman. I want to have the opportunity to wake up and not be in pain, to be able to take my kids to the museums and all the other places I use to take them and to be able to work and provide for them in the way they deserve.

    Thank you for your time.

    Quote Quoting SChinFChin
    View Post
    You posted a few threads here, and the answer is "YES, it is not illegal".

    I know this because I worked at a large multinational, a co-worker was recovering, but the department reorganized while he was gone, and though he recovered, was able to get doctor's notes saying he's recovering. I spoke to him and he said he heard he can't be fired while recovering.

    This dragged on for a month or two, till the company wised up and let him go. He started protesting it was unfair. Apparently, what he heard was wrong.

    Also, holding a job open where there is NO timeline for an employee's return is very difficult for an employer, which seems to be the case here. I had a business, I got one guy out on workman's comp, and hired temps to cover while he was out. I can tell you that filling positions with temps under these conditions is next to impossible because only people desperate for a job would take it, and all you need is a phone call that the other guy is coming back, and the temp is gone. I can't even promise the job for so many weeks.

    So, who needs that??

    Briefly, I was told the first temp was let go on his last job, and we decided to give him a try. Turns out he did a terrible job, and then found out he was let go by his own dad.

    The second temp was a Vet, with some "traumatic stress" disorders. I didn't know what this meant till he would be out about two days a week. The third temp was a "homeless" guy needing a chance, where I had no better luck.

    Meanwhile my customers had had enough of why work wasn't done. Can I claim the reason is for "being fair to someone out on WC"??

    Finally, I had to bite the bullet and replace the guy who was out originally. It is not illegal, and I had to decide the first priority was to be fair to my customers.

    Also, I see from your other post is that your problem is really that "you don't want to change doctors", though your are covered under the VA. Let me say in that case, get on over to the VA right away and get started.

    I don't want to start a "healthcare debate" on this thread, but when my daughter was 2 girls old, she had a problem and was treated by a pediatrician under my company's PPO plan, and it was my own company. Subsequently due to 15% increases every year in my premiums, I had to switch over to a cheaper HMO plan.

    Unfortunately the pediatrician said he is not under this plan, it just pays too little, so we had to switch doctors for my two year old in the middle of her treatment.

    I am angry, and I am not sure who I am angry at. Is it the doctor?? Is it our wonderful health care system claimed by some to be the best in the world??

    Sir, please be thankful there is a VA and you can switch doctors!!

    Let me conclude by saying I'm glad while I'm not an Obama fan, I voted Republican, I have struggled with health care issues as a businessman, particularly for my little girl as I mentioned, I am glad that something is being done on it.

    And lets be thankful. You and I are fortunate that you can go to the VA, and I currently have a nice PPO plan, paid by my employer, the municipality, we're not out on the streets with a tin cup waiting for handouts from "tea bag" protesters.
    @ SChinFChin

    Hi. I originally started my healthcare (when I was honorably discharged) with the VA. Although, I was service connected for the fracture in my lower back, I was treated like a number. I could go into detail but my fingers would be bleeding by the time I was through.

    You were able to switch your primary care provider through the VA? I requested a new primary care physician to take the place of the one that had been assigned to me and it was a long, drawn out process, that for me had to be approved. After I began the process I requested an appointment and was told until it was approved I would have to wait to be seen unless it was an emergency.

    I chose to go through my insurance for my service related condition. I have been under the care of my physician, surgeon, physical therapist and regular therapist for over a year. The spine fusion surgery I had required implanted steel plates to stabalize my spine. These same plates are compressing the nerves in my legs making walking, standing and sitting for more than just a few minutes at a time very painful.
    I was going through the steps to have a spine stimulator inserted into my spine to alleviate my pain and help me function like a "normal" 30 year old woman. The procedure was scheduled for THursday but now that I do not have insurance I am not able to have this done. I did request that they go through the VA to request coverage for this procedure and like everything else, it is a process but the request is in.

    I understand that I am fortunate to have any type of healthcare and had no issue with going to them after I had recovered because it is available. I only wanted the opportunity to repair my back/nerves with the team I had started with and that I trust rather than starting over.


    WHen I was formally told (through email) that my position would not be held I contacted the VA requested an appointment so that I could provide them with my medical records (I paid for a copy to provide the VA to help them get caught up with my current status) as much information as possible to them so that we could come up with a plan to help heal my back. After waiting 22 minutes to speak to the appointment clerk, I was given the earliest appointment.....Mid-May.

    I called back the following day this time only waiting 17 minutes and then being accidentally hung up on....called back for an additional 15 minute wait and was given an appointment 2 weeks from that day 30 minutes away rather than the office that is 10 minutes away.

    It may seem like I am complaining but I am just pointing out the difference in care. I am truly grateful that I have free healthcare through them and like I said, under normal circumstances would not have any issue going through their system to be treated.

    I did not expect my company to hold my job. I would not want others to have to work harder because I am not there. I do not want to sue them. I do not want monetary compensation.

    I only wanted more than 7 days to complete my care. I was only hoping that there was a way to keep my insurance a little longer to finish this procedure, nothing else. I do not want to be in chronic pain when there is an option that does not include narcotics.

    I was hoping there was a way to keep my current insurance up to 6 months after being let go due to being physically disabled. This would have given me time to follow through with the procedure I started. I understand now that there is not. Good thing I made the appointment with the VA.


    Thank you for your time and response.

    Quote Quoting Mr. Knowitall
    View Post
    Maybe, depending upon the full facts and laws of the jurisdiction.

    I just noticed your other thread. Did you miss this?
    @PattyPA, I apologize, I did not mean to create another thread. I hit reply somewhere at the top and I guess I created a new conversation rather then replying on the existing one.

    I have had back probelms related to an accident while in service for 10 years. My accident happened in the gulf, out to sea, about a year after I joined.

    When I was honorably discharged in 2007 I became a disabled veteran due to the fracture in my back. Over time my back pain and nerve pain (in both my legs) became worse. In mid September I was put on disability after lifting my youngest son. I must have tweeked something because I dropped to the ground (he's okay) in agonizing pain. The next morning I went to my physcian who put me on immediate disability and told me to schedule my spine fusion surgery asap (it was already scheduled for December and he along with my surgeon, physical therapist and therapist had already been treating me)

    I had my surgery 30 September 2009. 2 weeks prior I was on disability, working from home. I was determined to get back to work, to provide for my 2 young sons, as soon as possible. I began working from home in November but come January my surgeon stated I was not able to return to the office until I was able to walk/stand/sit more than 5-10 minutes without being in horrible pain.

    At that time the owner of the company had me put on disability, he did not want his employees working from home.

    Since then I have been on disability, still homebound since I am not able to drive more than about 5-10 minutes. I am able to function best, laying on my side but other than that am not able to be in any other position without experiencing a great deal of pain. So to answer your question, no, I am not currently able to work.

    I was not and am not looking or wanting to sue anyone or wanting monetary compensation. I only wanted to keep my insurance longer then the next 7 days in order to follow through with the Spine Cord Stimulator I was scheduled to have impanted tomorrow to help alleviate my pain and help me function.

    If you have the time to read my other responses, I understand I can go through the VA and I go into detail about why I just want to finish what I started with my current doctors and then will be more than happy to go sit in the VA waiting room.

    Thank you for your time, I appreciate it.

    Quote Quoting Mr. Knowitall
    View Post
    Maybe, depending upon the full facts and laws of the jurisdiction.

    I just noticed your other thread. Did you miss this?
    @ Mr Know it All, I messed up my reply again, dang it. My last reply was directed towards you, I apologize I realize you are not Patty.

  6. #6
    Join Date
    Dec 2007
    Posts
    2,360

    Default Re: Is it Legal to Fire a Disabled Person in the Middle of Recovery

    I take it, Acero, you responded to a 5 month-old post to sell your wheelchairs.

    On the off chance that selling your wheelchairs was NOT your reason for posting, the OP asked was it legal, not was it ethical.

    The administrator will decide whether or not your response was spam.

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