Laid Off due to Illness

Discussion in 'Termination: Firing & Resignation' started by Cronusi, Aug 20, 2009.

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  1. Cronusi

    Cronusi Law Topic Starter New Member

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    My jurisdiction is: Massachusetts/ Worcester

    I have worked for this company for five years. During the last year I had begun to get sick. Small symptoms at first joint pain, morning nausea, bad headaches. Then coworkers started to notice the limp from the joint pain in my legs and my skin color became white almost translucent, I also lost a lot of weight. I continued to work past the pain didn't take many days off, I tried to see my doctor before work or during lunch breaks. I liked my job and the people I worked with, I just needed to find out what was wrong with me. In September of 06 my boss wanted to speak to me, and he told me I was getting laid off, I would recieve six weeks severance pay and full unemployment pay. I couldn't get a reason for being laid off and concentrated on getting well. With the free time I started seeing my Doctor daily and after a few weeks we discovered a brain tumor that was damaging my pituitary gland which was causing the problems. Two surgeries later and the tumor was removed. I am still unemployed and thinking that I was unjustly terminated from my job.
     
  2. Green_Hornet

    Green_Hornet New Member

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    Can you reapply when your healed?
     
  3. Cronusi

    Cronusi Law Topic Starter New Member

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    When I was told I was to be laid off I was givin a couple of weeks to help the consulting company that was taking my place. I haven't called to ask for my job back. There were no arrangements made when I left that my job would be held open for me. I hope this answers your question.
     
  4. cbg

    cbg Super Moderator

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    Sorry I didn't see this initially. I have a couple of questions.

    1.) What reason were you given for the layoff?

    2.) Were others laid off at the same time you were?

    3.) How many employees does your employer have within a 75 mile radius?

    4.) Had there been any complaints about your performance?

    I'm thinking in a couple of different directions here.
     
  5. Cronusi

    Cronusi Law Topic Starter New Member

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    1. When I first started with the company there were 3 branches and a corporate site. Around the time I was let go it was near 20, I believe the reason was because the company had grown to the point where they needed a consultant company to handle my area.

    2. As the company was growing I was able to hire someone to work for me. He is still with the company. (or was after I was gone)

    3. The company manages nursing homes so if we include all of the nurses and admin people over 1000.(Website says 2600) Some sites they managed others they owned.

    4. None. I was usually praised for my work at review time and was given increases every year.
     
  6. cbg

    cbg Super Moderator

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    You haven't really answered #2. I'm less concerned with whether your assistant is still there, as with whether there were other employees who were laid off at the same time.

    However, I noticed something I missed the first time round, and that is that this happened nearly three years ago. Even if you did initially have a claim, which is still not clear, it's likely that you've waited too long to do anything about it now.
     
  7. Cronusi

    Cronusi Law Topic Starter New Member

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    No one else was laid off when I was. I realize that it has been 3 years since it happened, I just came across this site and always wondered if I should have done something. Of course it would have taken almost a year for me to try and fight it, getting well was job one. Sorry if I wasted anyones time.
     
  8. theretoo

    theretoo New Member

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  9. Patricia_Young

    Patricia_Young New Member

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    Well, the EEOC is not part of the Dept of Labor. Alleged FMLA violations are handled by the DOL. The EEOC handles discrimination complaints.

    Secondly, the window for filing a complaint with the federal EEOC is LONG past. Such claim must be filed within 180 days (extended to 300 days if charge is also covered by state or local anti-discrimination laws).
    http://www.eeoc.gov/charge/overview_charge_filing.html
     
  10. theretoo

    theretoo New Member

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    my statement does not state that the dol and eeoc are one in the same, but it is important to remember that a denial or failure to notify an employee of their fmla rights could very well fall into disability discrimination as fmla can be used as a 'reasonable accomodation' for a disability.

    http://www.e-hresources.com/Articles/Sept2.htm
     
  11. Hideoutcabins

    Hideoutcabins New Member

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    Here's my take on this >>>> Your employer was generous in allowing you to file uncontested unemployment benefits since an applicant must be able to work in order to qualify. Additionally, an employer should terminate any employee whom is no longer able to perform the job they were hired to do. This also applies to employees injured on the job and becomes a workman's comp issue. I don't know of any labor law statute that creates accomodations for lite duty work on an interim basis.
     
  12. theretoo

    theretoo New Member

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    ada requires that an employer provide 'reasonable accomodations' to an employee with known disabilities; workers comp requires that an employee be classified as a 'qualified injured worker' or permanently, completely disabled before seperation from the company can be considered.
     
  13. cbg

    cbg Super Moderator

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    Show me a single instance where the EEOC determined that failure to notify of FMLA rights qualified as disability discrimination under the ADA.

    In other words, put your money where your mouth is.
     
  14. theretoo

    theretoo New Member

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  15. Green_Hornet

    Green_Hornet New Member

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    OK I see what theretoo is saying. The employer could be liable under both the FMLA,as well as the ADA. Here is how if the employer failed to grant FMLA leave to the eligible employee who also has a qualifying disability under the ADA. The employee could sue under both laws.

    This is how: The employees attorney can file directly in U.S court under the FMLA (DOL action is not required), the attorney could have the client file a complaint to the EEOC under the ADA, at which time the client requests a right to sue letter, the EEOC will give a right to sue letter as soon as the client requests it after filing the complaint. The attorney in that case can sue under both theory's of law in a single case. It happens frequently.
     
    Last edited: Sep 12, 2009
  16. theretoo

    theretoo New Member

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    :yes: in my particular case in ca with the dfeh, the original complaint claims disability discrimination based on many factors, including the denial of fmla/cfra as reasonable accomodation for the disability. in ca, the dfeh handles all employment related discrimination including failing to provide family and medical leave.
    eeoc or dol may not sue for both, although i believe that eeoc may have the ability in a complaint to them in regards to discrimination, to include dol fmla violations in a discrimination complaint. if the aggreived individual has a attorney and chooses to sue on their own, they can certainly sue an employer for both in a single case.
    by the way, my 'disabilty' that i was denied leave for is 'depression'. depression is clearly included as a 'disability' under ca the feha, as is hypertension and many other chronic health related ailiments that may not have been included under ada in the past. however, with new ada regs, clearly, depression, in certain instances can be a disabilty if it is in it's active state.

    in order to prove discrimination, proof has to be that i was treated differently than others employed by the employer. were others approved medical leave for their illness/injury when i was denied. yes
    was i denied based solely on the 'type' of illness/injury - yes
    my employer 'denies' i was disabled or have a disability due to their own beliefs, not based on legal definitions of a disability. did they act in good faith, no. did i provide all required medical documention in a timely manner, yes. did they have the required 'doctor's' note indicating disability, yes.
    was i denied return to work rights from fmla/cfra/disabilty when others were allowed to return, based soley on the type of 'illness', yes. my employer's response, we do not work with doctor's, again, did employer work on good faith, no.

    employers these days, and med insurance companies in general, are abusing erisa and stating that a disability exists only if the insurer says it does, they don't have to comply with legal definitions.

    was my employer and or their 3rd party entity confused and basing fmla/cfra denial on the employer's self insured short term disability policy definition of disability and not seperating fmla/cfra and short term disability requests, i am sure that is the case. insurance companies think they can do anything they want to.
     
    Last edited: Sep 13, 2009
  17. foreclosure618

    foreclosure618 New Member

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    thank God, this is not rampant in our company.. i've heard cases of an employee seriously sick, he resigned.
    but i guess it depends also on what kind of sickness. if your sickness is contagious like TB etc..i guess you can be laid off because you are not anymore fit to work.. :yes:
     
  18. theretoo

    theretoo New Member

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    depending on the state, in ca, that is not the case. an employer cannot require an employee be 100 percent fit for work if the employee has a disability or is diasabled. the employer is required to provide reasonable accomodation
     
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