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Can I be laid off after returning to work from short term disability?

Discussion in 'Medical Leave & Disability' started by jmoline, Feb 26, 2012.

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  1. jmoline

    jmoline Law Topic Starter New Member

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    I live in Illinois and I work out of a Union Hall. I was put on short term disability on 11/23/11 for a surgery do to Ulnar nerve entrapment. My contractor and hall was made aware of this. They did not offer me FMLA but said I would continue to be employed by the contractor. I was released back to work on 2/20/12 full duty no restrictions and the contractor laid me off due to lack of work. Even though several employees have said there is work that could be manned and one forman was going to call me to work on a sat/sun job. Can they legally lay me off after STD for lack of work when there is work? If I hired an attorney would they have the burden of proof to prove that there was in fact no work? If there was no work then why didnt they lay me off during my STD time? Thanks

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    I worked full time for them for almost 5 years and was really only off work for 12 weeks. Wouldnt they have been legally obligated to give me FMLA? So that my job was protected? I feel like I have been mistreated and that now im a "liability" to them so now they just make up the lack of work excuse. They also employ more than 50 people. The Union hall is who paid out my STD under my health plan. It could have been either workers comp or just nature that I had the ulnar nerve entrapment but I didn't know for sure if it was a result of something at work so to try to preserve my job and not make them mad I chose the STD to find out I dont have a job
     
  2. cbg

    cbg Super Moderator

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    Okay, a couple of things here.

    First, STD does not ever, under any circumstances whatsoever, in any state, provide job protection under the law. Never. FMLA, and only FMLA, provides job protection. STD benefits can and do run concurrently with FMLA but it is the FMLA and NOT the STD benefits that protect your job.

    Second, if you were off for 12 weeks then you got all the time to which you were entitled, even under FMLA. There is a 2002 SCOTUS case, Ramsdale v. Wolverine, which essentially says that if you got all the time to which you were entitled, then the lack of notice of FMLA does not entitle you to any more time. So the fact that they did not say to you, btw, this time is going to be attributed to FMLA, is essentially meaningless since you got your full 12 weeks.

    For the moment, let's pretend that they told you up front that this was FMLA time and reinforced it once a week (which, btw, they are not legally required to do). (1) If you returned to work even one day later than week 13, day 1, then you no longer had any job protection and they could legally let you go just because they felt like it (2) Even in the middle of FMLA, they can quite legally let you go if you would have been let go regardless of your FMLA leave.

    What does your union rep say?
     
  3. jmoline

    jmoline Law Topic Starter New Member

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    Some of the things you said are a bit confusing. Are you saying that regardless if FMLA was implicated or not I am entitled to the protection under FMLA? I guess what Im saying is they didnt say you have a choice between FMLA, protecting you job with no pay, OR taking STD and have no protection with pay. Obviously if I had a choice I would protect my job, but they said this is what you get, and that was it. I was in fact RELEASED and READY to return back to work on week 13 day 1. but prior to that when I took them the release note they said there was no work for me. So was I or wasnt I protected by FMLA, and it I wasnt were they required to give me that option? And I was employed on a job that was going full steam with work and is still currently going. So I quite doubt that I would have been laid off anyway. To me it seems as all of a sudden I'm a liabily instead of a loyal worker and they are trying to say whatever bs they want to get rid of me. I have not yet talked to my rep, I know they have work, so how can they legally say they dont. If I was covered by FMLA then they shouldnt be able to lay me off.
     
  4. cbg

    cbg Super Moderator

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    Talk to your union rep and then come back and tell me what he says.
     

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