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What to Do About an Employer's FMLA Violations

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  • 03-04-2019, 06:04 PM
    cbg
    Re: FMLA Violations
    Quote:

    Quoting NyTngirl
    View Post
    Is there anything you would tell me that we should do that we aren't. We will go after them for fmla violation and ada discrimination. I don't know what the next steps are and what we are looking towards

    You very well may have a FMLA violation but you do not have a claim for ADA discrimination. He is not entitled to any kind of ADA accommodation for anyone's disability but his own, and a condition that would be resolved in two weeks wouldn't qualify for the ADA even if he were.
  • 03-04-2019, 07:31 PM
    NyTngirl
    Re: FMLA Violations
    Breast cancer treatments go on for years. My case will be 7-10yrs. Exams, oncologist, scans and hopefully no reoccurance.

    When an employer fires an employee "who merely has a relationship or association with an individual with a disability," it may trigger legal action under the ADA, the Employee Retirement Income Security Act (ERISA), and/or the Family and Medical Leave Act (FMLA), says Michael Grubbs, a labor and employment lawyer at Sherman & Howard in Phoenix, Arizona.

    McPhail claimed discrimination under all 3 acts and wrongful termination under Arizona law, saying that he'd been fired because of his wife's disability and Cox's speculation about further time off–plus the insurance costs to the company of his wife's cancer (some $5,000 per month; his health care plan was company-funded). An Arizona court has ruled in favor of McPhail, refusing Cox's attempt to have the case dismissed.

    How could McPhail invoke the ADA? In what Grubbs describes as a "somewhat overlooked provision of the ADA," there's a prohibition "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association."

    An example of associational discrimination? The Equal Employment Opportunity Commission offers this one: "An employer may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability."

    The 2nd time they had him off his last day he worked was oct 19th and they fired him dec 19th. They called him off everyday during that time. They would let him collect unemployment because they said they had him under fmla which my husband told them he didn't want to take fmla days.
  • 03-04-2019, 07:46 PM
    cbg
    Re: FMLA Violations
    I think you'll have a very hard time making that stick. You're on much stronger ground with FMLA.
  • 03-04-2019, 08:18 PM
    jk
    Re: FMLA Violations
    Quote:

    Quoting NyTngirl
    View Post
    Breast cancer treatments go on for years. My case will be 7-10yrs. Exams, oncologist, scans and hopefully no reoccurance.

    When an employer fires an employee "who merely has a relationship or association with an individual with a disability," it may trigger legal action under the ADA, the Employee Retirement Income Security Act (ERISA), and/or the Family and Medical Leave Act (FMLA), says Michael Grubbs, a labor and employment lawyer at Sherman & Howard in Phoenix, Arizona.

    McPhail claimed discrimination under all 3 acts and wrongful termination under Arizona law, saying that he'd been fired because of his wife's disability and Cox's speculation about further time off–plus the insurance costs to the company of his wife's cancer (some $5,000 per month; his health care plan was company-funded). An Arizona court has ruled in favor of McPhail, refusing Cox's attempt to have the case dismissed.

    How could McPhail invoke the ADA? In what Grubbs describes as a "somewhat overlooked provision of the ADA," there's a prohibition "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association."

    An example of associational discrimination? The Equal Employment Opportunity Commission offers this one: "An employer may not treat a worker less favorably based on stereotypical assumptions about the worker's ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability."

    The 2nd time they had him off his last day he worked was oct 19th and they fired him dec 19th. They called him off everyday during that time. They would let him collect unemployment because they said they had him under fmla which my husband told them he didn't want to take fmla days.

    Your sounding like an advertisement. Treatment for breast cancer varies greatly. It can be a relatively short treatment or if it is non responsive it can continue for a lengthy time. Many long term treatments will not be classified as a disability as it does not affect a person to an extent it will be classified as a disability.

    As to firing s person for an association with a person with medical issues being an fmla isssue: fmla does nothing more than allow up to 12 weeks per year of leave where the employee cannot be penalized. Once thst time has been used, the employee can be fired if they miss additional time from work.


    Comcerning ADA: first, the condition has to be determined to be a disability. Depending on the treatment, it may or may not qualify as a disability. It takes more than the word “cancer” for it to be a disability. It actuslly has to be a disability as described by the law to be a disability. I have no idea as to how limited your activities are so I can’t guess as to whether it may be or eventually may be a disability. Even then making the argument you have is far from a sure thing.

    Don’t get me wrong: it does sound like your husband has been treated unlawfully. I just don’t see the possible clsims you have stated outside of the fmla violation. .
  • 03-04-2019, 09:19 PM
    NyTngirl
    Re: FMLA Violations
    I sound like an advertisement?
    I take offense of that. I was just starting the facts in my case. Do you not understand that treatments cause other problems like lymphedema, joint pains, breast pain,osteoporosis,eye problems ect. Just because someone has surgery and radiation doesn't mean they are healed.

    I don't know what the lawyer means but he is the one who told us about ada. I will ask him once we're go for the unemployment hearing phone call in his office. I came asking for advice not to be yelled at.
  • 03-04-2019, 09:45 PM
    jk
    Re: FMLA Violations
    Quote:

    Quoting NyTngirl
    View Post
    I sound like an advertisement?
    I take offense of that. I was just starting the facts in my case. Do you not understand that treatments cause other problems like lymphedema, joint pains, breast pain,osteoporosis,eye problems ect. Just because someone has surgery and radiation doesn't mean they are healed.

    I don't know what the lawyer means but he is the one who told us about ada. I will ask him once we're go for the unemployment hearing phone call in his office. I came asking for advice not to be yelled at.

    treatment MAY cause other issues. Whether they are truly disabling is specific to each individual patient. I happen to know a breast cancer survivor that was “disabled” (or more accurately, unable to work) for a very short period of time. She would not have qualified as being defined as disabled for purposes of the ADA.

    Just because a person has the issues you listed, it doesn’t mean they are disabled for purposes of the ADA.


    And im not yelling at anybody.
  • 03-06-2019, 05:05 PM
    NyTngirl
    Re: FMLA Violations
    Can a moderator help me remove or edit my post.
  • 03-06-2019, 05:13 PM
    llworking
    Re: FMLA Violations
    Quote:

    Quoting NyTngirl
    View Post
    Can a moderator help me remove or edit my post.

    At the top of the thread, on the right you will see a drop down box for thread tools. There may be a delete options there. I cannot see one because its not my thread.
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