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Old 11-25-2009, 09:30 AM   #1
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is it legal for a company to terminate employee during his medical leave

I am on my medical leave over 3 months but less than 6 months. My doctor put me on short-term disability, but my company designates my situation is under FMLA. They said returning back to work is not guarantee after I am on my medical leave for more than three months.

I got a letter from my company today with two contents,

1. it said that the company decided to eliminate my position, so my position will be eliminated and my employment with my company will be terminated.

2. then it said the new similiar position has been posted. If I believe that I qualify for this new position, please feel free to apply for it. the application process will be open for 10 days.

I have questions:

-whether it is legal for a company to terminate a person when the person is still on his medical leave.? (because they decided to eliminate this position)

-My medical leave is still valid till next month, am I right now eligible to continue to claim my disability insurance until it expires?

In the other word, could I continue my medical leave if the company decided to terminate me during my medical leave? it is really tough situation for me...

Thank you.

 
Old 12-01-2009, 06:43 PM   #2
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Re: is it legal for a company to terminate employee during his medical leave

I wouldn't think so but go see an attorney or call the labor board if they still have anything like that to ask. You will also loose your insurance if you have any..

 
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Old 12-02-2009, 07:00 PM   #3
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Re: is it legal for a company to terminate employee during his medical leave

Yes, it is legal to end someone's employment while they are out on medical leave. FMLA is a federal law that requires job protection for 12 weeks. (There are limited states and employers that may provide more than 12 weeks but the majority provide 12 weeks and if you belong to a union you'd want to check with the union as to this as well).

After FMLA is exhausted the employer is under no obligation to continue employment. If an employer chooses to terminate your employment then you are no longer on medical leave as you are no longer an employee. However your STD and/or LTD may continue depending on the specific plan under which you are covered. There are some states that have state STD and those are CA, NJ, NY, RI, PR and HI.

Many employers must cease employment once FMLA is exhausted due to internal protocols and practices as they are not able can not retain workers "on the books" indefinitely. The letter they sent you was 100% appropriate. In fact I'm in the same boat.

I went out of work in May of 2009 and was on STD through my employer. I was later sent the same letter and my position has been eliminated (which I expected due to the decline in performance of my company and the other position eliminations nationwide as well). However, I remain on STD until I recover or until the STD benefits are exhausted. In my case the STD was exhausted in October and my LTD began in November. LTD will continue as long as I remain disabled. Most STD and LTD plans are based on the being employed on the date you became disabled.

Example: John breaks his leg April 2, 2009 and applies for STD and is awarded this April 15, 2009. John's employer files for bankruptcy and closes the doors May 1, 2009 but John's leg requires extensive surgery and rehabilitation. In most cases his STD continues until he is released to return to work (even if there is no job to return to) or he exhausts his benefits - whichever happens first. The existence of his employer is not an issue.

STD and LTD only continue so long as the person is disabled. It is not dependent on whether there is a job to return to. Once you are deemed able to return to work - even if there is no job to go back to - then benefits will end. Be sure to request from your employer a copy of the STD and LTD plan documents so you can have these to review. There are limited cases where STD benefits end when employment ends but this is rare in my experience (15 years in the industry). If you are getting STD from an insurance company (your employer paid the insurance company either premiums or a fee to administer STD) then any decision on being disabled is between you and the insurance company.

Let me know if I can clarify this in any way.
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Fusions: L5-S1 (87), L4-S1 (93), C5-C7 ('06), L3-S1 ('10)
C5-C7 foraminotomy 08

 
Old 01-06-2010, 05:58 AM   #4
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Re: is it legal for a company to terminate employee during his medical leave

A car struck my son in laws work truck, about 40 mph, while he was at a red light, during his work hrs. His back went out. He stayed working for about 3 weeks, because he is a supvr., but his boss, who is also his brother, terminated him after 22 yrs. Said he had to cut back, then hired a replacement.
He then signed up for disability, and began physical therapy. Now after a few months, he has been released with restrictions. He has no job, no ins, and a family with major home and car payments. Is this legal to treat a person like this legally? We live in MO. He got legal advise, and the lawyer said it is legal. Can this be true? Please tell me otherwise. thanks

 
Old 01-06-2010, 06:23 AM   #5
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Re: is it legal for a company to terminate employee during his medical leave

It is legal.

*If an employee is covered by FMLA then his/her job must be held for 12 weeks. Even under FMLA the person can be returned to a comparable position if his/her own position had to be filled during his/her absence.

*If not covered under FMLA then there is no period of time for which a job must be held.

BUT, even if covered by FMLA there is a guideline under FMLA that says a job does not have to be held if doing so will cause undue harm to the employer, i.e. financial burden or production burden, etc. So if the position is one that is vital he/she can be eliminated to allow for a replacement at any time. FMLA applies to employers that have 50 or more employees at a single location or employees who work within 75 miles of the location. If less than this then FMLA does not apply in any case.

If the only way to replace the position your son had was to eliminate him, and hire another, then it's reasonable under the law. Often this is the case as carrying an employee has financial costs to it (benefits, payroll, etc). If he is 100% able to do his old job he can ask if there are any positions he can be returned to but in smaller businesses this is often not possible. If your son was covered by medical insurance he should have been offered COBRA. COBRA has a provision that reduces the premium if someone has been let go involuntarily in the recent past. He can also apply for unemployment benefits if he is able to work.

In a factory, large corporation, or large employer it's more likely a position can be held as there are others that do the same job and can fill in. But if your son was the only driver, or one of only a few, the business need dictated that the position must be filled immediately to keep the business going.

As I said, I was the only employee of my company in my state (AZ) doing the job I was doing. Thus at 12 weeks they had to eliminate me to free up money and to be able to justify allocating my work to another regional office in the US.

I have a friend who works for a small garage door company and they have had to downsize. When he heard I was out of work he said, and rightly so, he'd be scared of becoming ill or injured as FMLA does not apply to his employer and he knows he'd have to be replaced to keep the business going


There is more detailed FMLA information at www.dol.gov
__________________
Rt&Lt thumb arthroplasty 2012 ; RT TKR & Bilat CTS 2011
Fusions: L5-S1 (87), L4-S1 (93), C5-C7 ('06), L3-S1 ('10)
C5-C7 foraminotomy 08

Last edited by SpineAZ; 01-06-2010 at 06:28 AM.

 
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