Continuous layoffs over medical issues

[SusanM69]

I have a severe medical condition that is completely dormant most of the time, but flares up about once every six weeks when it's active. During flare-ups, I am completely debilitated, and on high doses of morphine and Percocet for pain. About once a year, the condition is severe enough to require hospitalization for about a week.

I have trouble holding jobs because of this.

I have an excellent resume and recommendations, and have achieved above average performance reviews throughout my career.

At several positions, though, the condition flares up, and I am either debilitated at home, or sometimes in the hospital, with the frequency described above. As soon as it becomes a pattern, I am laid off for any number of generic reasons - budgeting, restructuring, etc. It is so transparent each time it happens that I can predict it with extreme accuracy.

I am not eigible for medical disbility because my condition is so sporadic, but I also continually go through savings and wind up back at the same starting point every few years since I'm not ideally employable. I tend to be at a position for less than two years before termination, so I am on a two year cycle of ups and downs. It is only because I have learned to plan for this certainty financially that I can keep my head above water. I am very concerned, though, about my future, given rising medical costs and my inability to save for later years.

Since termination is always attributed to something bogus, do I have any recourse? I'm currently unemployed again and wondering if there is something I could/should do up front to protect myself from this happening again.

 

[cbg]

The problem is, under Federal law you have to have been employed with the same employer for over a year before FMLA goes into place. It doesn't matter how much over a year; 366 days (367 in leap years) is enough. But if you haven't been with the employer for at least that long (and there are other eligibility criteria as well, ALL of which have to be met) then you have no protected medical leave. And if FMLA does apply, it's limited to 12 weeks in a 12 month period.

The only other law that might apply would be the ADA, and even under the ADA I doubt that allowing you as much time off as you seem to be describing would be considered reasonable. How much time, in an average year, are we talking about? Just in case I'm misreading you.

The fact that they attribute the layoff to something else does not make it automatically actionable.

 

[SusanM69]

Thank you for your response.

I was with all employers for more than a year, but FMLA was never offered or suggested. I didn't know it existed until after the fact.

I generally miss about 6-8 weeks per year, not always full weeks, and one of those is usually due to hospitalization. I offer to use vacation time, but am told not to worry about it. I am in management, though, so 1. I work 60 hour weeks the rest of the year, including weekends with no comp time and 2. I am online and taking care of time sensitive work even from bed/hospital. One company even Fedexed a Blackberry charger to the hospital, at my request, so that I could tend to important things.

They act very understanding, but then I get laid off for "no" reason. When I am laid off, it sends shock waves through close co-workers who are visibly angered on my behalf, say they don't know how they're going to accomplish as much without me, etc.

I really am an exceptional employee. I simply fight a chronic condition, too.

Should I tell future employers about this up front? Does that offer me any more protection? In this economy, though, I fear it would make it even harder to find a job.

 

[cbg]

Okay, here are all the criteria for FMLA. Keep in mind that ALL of the 4 criteria have to be met. If even one of them is not true, then FMLA does not apply.

1.) You must have worked for the employer for a minimum of 12 months

2.) Your employer must have a minimum of 50 employees within 75 miles of your location

3.) In the 12 months immediately preceding the start of your leave, you must have worked a minimum of 1,250 hours for that employer

4.) You or a qualified beneficiary must have a 'serious health condition' as defined by the statute. (From what you have posted, I have no doubt that this criteria has been met.)

Looking at all of the criteria, do you think that FMLA applied? Note that ONLY absences AFTER the eligibility criteria were met would be protected; any absences in your first year of employment, for example, would not be applicable to FMLA.

 

[SusanM69]

Yes, all of those criteria were easily met.

I understand how this provides leeway for absence, but how does it protect against termination? Or perhaps I'm misunderstanding. I know someone, personally, who was terminated last year while on FMLA.

Ironically, I am posting this response from the hospital, where I was just admitted this morning with the same illness. As stated above, once treated, I am completely able to be connected and accomplish plenty.

Thank you again for your time.

 

[cbg]

FMLA provides protection from being fired FOR being on FMLA. It does not provide protection from firings that would have occurred regardless of whether you took FMLA or not. Business related layoffs, downsizings, terminations for performance issues or policy violations, all can take place while someone is on FMLA.

If you believe that you were fired in violation of FMLA (keeping in mind that ONLY absences that took place AFTER all four criteria were met are protected - meaning that no absence in the first year of employment is protected), the regulatory agency you would complain to is the Federal DOL.

 

[SusanM69]

As I said in the beginning, they always call it 'restructuring', 'budgetary' or something similar. Due to performance reviews and letters of recommendation from every direct supervisor I've ever had, I'm certain it's never over performance. The pattern is clear - it's because of the absences.

Since I never applied for FMLA, it sounds like I'm SOL. The next time I'm at a position for a year, I'll apply, and hope for the best. I'm discouraged by your reply, though... sounds like there are plenty of loopholes for this to continue happening.

Thank you, again.

 

[cbg]

You are not required to apply for FMLA. If the employer knows or should have known that FMLA might apply, it is their responsibility to offer FMLA whether you ask for it or not. In fact, if they KNOW that FMLA might apply, they are legally obligated to conditionally count it as FMLA regardless.

That being said, I find it hard to believe that each and every employer you have worked for would deliberately choose to violate the law in exactly the same way for exactly the same reason. Are you sure that the business reasons you've been provided are not true? The economy sure is in an awful state and a great many employers are quite legitimately having to let people go.

 

[SusanM69]

This last time around, that absolutely could have been it. The times prior, though, circumstances were just too fishy surrounding everything.

I'm not even so much interested in a lawsuit (unless absolutely necessary) as I am interested in protecting myself up front, in some way, if such a thing is possible.

It sounds like even with FMLA, there's no real protection, so I will continue just doing the best that I can.

Thank you, again.