Fired for transplant?

I learned from some lady that her husband was fired b/c the insurance company informed his engineering firm of his need for a kidney transplant. The firm cited other reasons for dismissal, of course... One of my family members will need one soon and he's worried he might lose his job due to this. If it makes a difference, he works at the managerial level for a respectable company.

Does this really happen? If so, how can one prevent this from happening?

I would hesitate to take the situation described to you as gospel. People have a way of oversimplifying to try to make their situation more effective. It's quite possible that the other reasons were valid, and possibly one of them involved the amount of medical leave available.

While an employee cannot be fired because they need a transplant, if FMLA applies the employer is only required to provide up to 12 weeks of medical leave (unless state law or legally binding contract, policy or CBA specifically says otherwise). Once the twelve weeks has expired, the employer is legally entitled to terminate the employee and hire someone who is able to be there and do the work. The law has to balance the right of the employee to keep their job when they are ill, with the right of the employer to keep his business operating. This applies no matter how legitimate the need for additional medical leave, with the caveats already mentioned.

FMLA applies when all of the following are true: (1) The employee has worked for the employee for 12 months or more (2) The employer has a minimum of 50 employees within 75 miles of the employee's location (3) the employee has worked no less than 1,250 hours in the 12 months immediately preceding the leave and (4) The employee or a qualified beneficiary has a serious health condition as defined by the statute. If even one of the 4 criteria is not met, FMLA does not apply.

If FMLA does not apply, then the employer only has to provide the amount of medical leave his policy provides for. Additionally, FMLA does not protect the employee from being fired for reasons that are unrelated to the leave. If they would have been fired whether they took leave or not, then FMLA does not prohibit the employer from firing them anyway.

It would by no means be the first time I have heard, "I was fired for being sick" when, in fact, the employer had held the employee's job open for the statutory time and only fired them when they were unable to return to work after the appropriate time expired.

Thank you so much for your helpful response.

I understand what you said completely. But can the insurance company inform the employer (off record) that they would have to raise their premium if said employee was to get the transplant, giving the employer a motive to dismiss him/her with the excuse of "corporate down-sizing" or such-- especially in this recession? I'm just trying to make sure that if the employee is a diligent worker and returns on time after a given period of medical leave, then there's no worries about any loophole that may cause dismissal.

Also, where can I find information about whether or not the FMLA applies in NJ?

Thanks again!

FMLA is a Federal law and applies in all 50 states. NJ does not have a state version that extends the time beyond 12 weeks; at least, not one that applies in the case you indicate.

I can assure you that every employer is well aware, without being told by the insurance company, that an extensive claim may up their premiums.That is a given. That is the nature of group insurance. How much it will up the premiums is a question that can only be determined by a number of variable factors. There are two kinds of group insurance - fully insured and self insured. Without going into long drawn out explanations, if the plan is fully insured the insurance carrier cannot give the name of the employee(s) who is/are having large claims; with self insurance they not only can, but must. However, as I said, this is something the employer already knows whether the insurance company tells them or not. ANY large claim can have an adverse affect on the premiums and the employers know which employees are out on extended medical leave.

In any case, there is a very large, very complicated law called ERISA which covers insurance issues with employers, and it would be a violation of ERISA to fire an employee because they used the insurance.

Thanks for all your help

Hope all goes well for your family member!