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How to Keep Your Job After Your FMLA Leave is Over

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  • 10-01-2016, 04:42 PM
    onlooke
    How to Keep Your Job After Your FMLA Leave is Over
    My question involves labor and employment law for the state of: OH

    This is a question concerning my brother. He is off work for cancer, on Fmla. He has exhausted all his fmla days and his employer told him to return or face termination.
    He has not been clear to return and is still going through chemo. He has been working there for 15 plus years, and doesn't want to lose his job. I know that if you use up all your fmla days, an employer can fire you at will. Is there any option for him, or just take the termination and look for another job until he recovers. Thanks
  • 10-01-2016, 04:50 PM
    cbg
    Re: Flma
    I'm sorry for your brother's situation, but the law is clear on this. If his FMLA has been exhausted, then his employer may legally require terminate his employment if he is unable to return to work. Ohio does not have any state law that extends his protected medical leave. Unless he has a legally binding and enforceable contract or CBA that expressly gives him more time, 12 weeks is the maximum he is entitled to.

    My best to your brother and good wishing for continued healing.
  • 10-01-2016, 05:15 PM
    comment/ator
    Re: Flma
    He needs to quickly and immediately, as soon as he receives this termination notice from the employer, get up from his sick bed and file for unemployment benefits. He will not be able to draw right now, of course, because he has not been released by his doctor to return to work, but the claim will set up, based upon his last five quarters of wages, which will be quite a bit more than if he waits to file for unemployment until he is released by his doctors, which may be sometime out in the future when he will have lost quarters of wages. This claim will stay there and will be good anytime from the date of filing for one year.

    This happens, frequently. I am sad to say it used to happen more and quicker, until thank God, FMLA was passed into law. But yes, they may legally fire him. And he cannot draw unemployment insurance benefits until he is fully released by his doctor to return to work. At that time, even though they have technically fired him now, he should notify his old employer that he has been released and is ready to come back to work. If they at that time say No, you were fired back in October, we do not have any work for you, then he will be able to begin drawing his claim if it has not been more than a year from the date of filing of this claim. If it has been, there will be very little chance of him having another claim, but he should definitely re file for benefits.

    I hope to goodness he gets released quickly and has good results. It does happen, but being let go in this way, there's nothing illegal about the employer doing it. Sad but true. Good people have very bad things happen to them sometimes, and it's legal in this country and with our labor laws.
  • 10-01-2016, 05:53 PM
    onlooke
    Re: Flma
    Quote:

    Quoting comment/ator
    View Post
    He needs to quickly and immediately, as soon as he receives this termination notice from the employer, get up from his sick bed and file for unemployment benefits. He will not be able to draw right now, of course, because he has not been released by his doctor to return to work, but the claim will set up, based upon his last five quarters of wages, which will be quite a bit more than if he waits to file for unemployment until he is released by his doctors, which may be sometime out in the future when he will have lost quarters of wages. This claim will stay there and will be good anytime from the date of filing for one year.

    This happens, frequently. I am sad to say it used to happen more and quicker, until thank God, FMLA was passed into law. But yes, they may legally fire him. And he cannot draw unemployment insurance benefits until he is fully released by his doctor to return to work. At that time, even though they have technically fired him now, he should notify his old employer that he has been released and is ready to come back to work. If they at that time say No, you were fired back in October, we do not have any work for you, then he will be able to begin drawing his claim if it has not been more than a year from the date of filing of this claim. If it has been, there will be very little chance of him having another claim, but he should definitely re file for benefits.

    I hope to goodness he gets released quickly and has good results. It does happen, but being let go in this way, there's nothing illegal about the employer doing it. Sad but true. Good people have very bad things happen to them sometimes, and it's legal in this country and with our labor laws.




    I appreciate the input. One more question, I think his short term disability is also ending with the company. Where should he apply for short term benefits until he get the release from the doctor to be able to claim unemployment? because it can be a couple of months before he is done with therapy. We have workers compensation run by the state, is that where he should apply for it? Thanks
  • 10-01-2016, 05:59 PM
    cbg
    Re: Flma
    Workers compensation is only for work related injuries or illnesses. Ohio is not one of the five states that has state benefits. He should investigate whether his STD benefits are really ending with his employment; while not impossible, it is very, very unusual for that to be the case.
  • 10-02-2016, 07:13 AM
    comment/ator
    Re: Flma
    Yes, many people believe that there is a state or federal program which will help you and cover you while you are too ill to work. In SOME states, employers are required to provide sick leave benefits for employees. Ohio isn't one of those. In all states, there is no unemployment insurance unless you are NOT unable to work due to health reasons. In the situation you describe, there is no worker's compensation which is a factor ONLY if the person was injured at work and his health issues are a result of this on the job injury. So in other words, if your state is not one where short term disability is required, and you don't happen to work for a company which has sick leave benefits or short term disability which they didn't have to carry but did (a nice thing for them to do) or you have private sick leave or disability insurance which you yourself have purchased (like the duck stuff, you know AFFLAC or some other brand) then you are simply legally out of work, with NO benefits coming in and no help from anywhere.

    I certainly hope, as is suggested above that perhaps your sick leave benefits are NOT ending with the job. He definitely needs to check this with his employers' HR. He also, as soon as he is officially let go, needs to sign up for unemployment and set up that claim, as I said above. Maybe his doctor will be willing to release him back to full duty quickly and he can begin drawing unemployment for a few months.

    Help from income based programs comes only after you have become impoverished and have spent away all of your own assets and qualify as "low income." So if you get an illness or condition unrelated to your work, such as you get a serious illness or have a terrible accident away from work, and you have been out the twelve weeks of FMLA required by law, the employer can and probably will spit you out and leave you to your own devices.

    There are a whole lot of people in our society today who work hard and expect fairness and rewards that DO NOT happen in our workplaces. ""He who has the gold makes the rules," and it's never a good idea to forget that or feel too comfortable that you're not going to end up on the bottom through circumstances beyond your control.
  • 10-03-2016, 10:59 AM
    onlooke
    Re: Flma
    Thanks for the input. Found out his short term disability won't be ending soon per HR, she still sifting through paperwork. We met up with her and my brother ask for an extension without pay which they won't approved. Return on this date or termination no questions ask. As we were leaving one of his co-worker came up and talk to him about is health and whats going on. She told him that she was actually off work with cancer also, she had requested a whole year off and came back to her old position with no ill effect. Why would they approve her and not my brother who is only requesting another 2 months off?, in total he will only be off for 6 months. I'm assuming the company could make the call on who they want to approve and who they don't. Thanks
  • 10-03-2016, 12:47 PM
    cbg
    Re: Flma
    I can think of at least two reasons just off the top of my head why they might be treated differently, both of which are legal. There are a great many regulations that need to be followed in these cases and since no two situations are identical, the balancing of all these competing rules means that different employees may be treated differently.
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