Illegal layoff?

[Concerned wife]

Jurisdiction

North Carolina

My husband got extremely ill in March of this year. He was hospitalized for 2 months and then discharged to home care after that. He is now on disability. His company that he worked for fornover 10 years laid him off 2 weeks after hospitalization started. He was the only one laid off. I do have to say that the company has been downsizing over the prior 6 months from March. The company is now shutting its doors Dec 31st of this year. He was an impeccable employee that many considered the buoy that kept the company afloat. This seems even more evident since it has basically become defunct since they laid him off. My question is, was it legal for them to lay him off because he was hospitalized with an expected long recovery period(6 months or more)?

 

[army judge]

was it legal for them to lay him off because he was hospitalized with an expected long recovery period(6 months or more)?

Yes, an employee can be terminated, even if said employee is ill.
There are exceptions, and if he is one, his best recourse is to meet with a couple labor law attorneys in your county.
If he is that exception, its going to be something where an attorney is required.
It'll also be a difficult, protracted struggle, even with an attorney.

 

[cbg]

You have not provided enough information to say for certain if it was or was not illegal. However, under the circumstances, EVEN IF IT WERE ILLEGAL, there's really nothing to be done about it. And quite honestly, based on what information we do have, it's far more likely that it was legal than not.

 

[Betty3]

Agree that we don't have enough info - for example did FMLA apply at the time of termination? However; even if FMLA applied, he could be terminated if he would have been terminated had FMLA not applied. FMLA would now be expired. It's 12 weeks of job protected leave. Since the co. had been downsizing & now closing it's doors, probably legal. There is no job to go back to anyway.

 

[Concerned wife]

Yes, an employee can be terminated, even if said employee is ill.
There are exceptions, and if he is one, his best recourse is to meet with a couple labor law attorneys in your county.
If he is that exception, its going to be something where an attorney is required.
It'll also be a difficult, protracted struggle, even with an attorney.

What other information would you need to know?

 

[Concerned wife]

Agree that we don't have enough info - for example did FMLA apply at the time of termination? However; even if FMLA applied, he could be terminated if he would have been terminated had FMLA not applied. FMLA would now be expired. It's 12 weeks of job protected leave. Since the co. had been downsizing & now closing it's doors, probably legal. There is no job to go back to anyway.

Ok so as far as FMLA, his company said he could file that paperwork if he wanted to, but laying him off would give him the option to draw unemployment. We knew that you couldn't file unemployement if you were in the hospital because you are physically unable to work. They basically wanted him to break the law. My husband didn't think he had any other choice but to accept the lay off because there wasn't much he could do being hospitalized.

 

[army judge]

Ok so as far as FMLA, his company said he could file that paperwork if he wanted to, but laying him off would give him the option to draw unemployment. We knew that you couldn't file unemployement if you were in the hospital because you are physically unable to work. They basically wanted him to break the law. My husband didn't think he had any other choice but to accept the lay off because there wasn't much he could do being hospitalized.

That response answers your own question.
He was faced with a Hobson's choice, and he voluntarily took the layoff in an attempt to draw unemployment.

Or, don't you understand what you just posted?

 

[cbg]

How many employees did the employer have within 75 miles of his location?
Had he worked a minimum of 1,250 hours in the 12 months immediately preceding his leave?
How long had he worked for this employer?
How much time overall did he end up missing?
At what time would he have been approved by his doctor to return to work, had he not been laid off?

 

[Concerned wife]

That response answers your own question.
He was faced with a Hobson's choice, and he voluntarily took the layoff in an attempt to draw unemployment.

Or, don't you understand what you just posted?

I think I wasn't clear. He didn't voluntarily take the layoff. The reason they gave for laying him off was so that he could draw unemployment. We knew he couldn't draw unemployment.

 

[Concerned wife]

How many employees did the employer have within 75 miles of his location?
Had he worked a minimum of 1,250 hours in the 12 months immediately preceding his leave?
How long had he worked for this employer?
How much time overall did he end up missing?
At what time would he have been approved by his doctor to return to work, had he not been laid off?

The company is a small company at the time of layoff there were only about 20 employees. He worked 40-50 HR a week and the only time he has missed over the past 2 years was vacation time. He worked for them for almost 11 years. They laid him off after he used up all of his vacation days which was 2 weeks after onset of hospitalization. He was just released to return to work Nov 7th. So it was a very lengthy recover. At the time he was laid off he was on a ventilator.

 

[Betty3]

I don't see where the employer did anything illegal. There aren't enough employees for FMLA to apply. Even if it did, FMLA is only 12 weeks of job protected leave. Sorry.

 

[cbg]

Yes, Betty is right. Given the specific circumstances, the employer did not break any laws by laying him off. They are too small to fall under FMLA, which means that there was no protected medical leave available to him, and even if there had been, they would have been legally able to release him from employment long before November 7th. Barring a state law that says otherwise, and your state does not have one, the maximum length of time an employer is ever required to hold a job for an employee on medical leave is 12 weeks.

 

[Concerned wife]

Yes, Betty is right. Given the specific circumstances, the employer did not break any laws by laying him off. They are too small to fall under FMLA, which means that there was no protected medical leave available to him, and even if there had been, they would have been legally able to release him from employment long before November 7th. Barring a state law that says otherwise, and your state does not have one, the maximum length of time an employer is ever required to hold a job for an employee on medical leave is 12 weeks.

Thanks everyone for the responses. We didn't think we could do anything about it. Just wanted to hear from some people that might have more information on the topic. It's really crappy the way his company treated him, but I guess that's what you get for over 10 years of loyalty. Just goes to show that the company could survive without him. 3 of his coworkers quit after he got sick and was laid off, and now the company is closing its doors at the end of December. Karma!

 

[army judge]

Thanks everyone for the responses. We didn't think we could do anything about it. Just wanted to hear from some people that might have more information on the topic. It's really crappy the way his company treated him, but I guess that's what you get for over 10 years of loyalty. Just goes to show that the company could survive without him. 3 of his coworkers quit after he got sick and was laid off, and now the company is closing its doors at the end of December. Karma!

You're most welcome.
What your husband experienced happens far too often.
I hope his health improves, nevertheless you, he and I are still among the living, at my age I consider that a good thing!!!
If he hasn't applied for social security disability, it can't hurt him to do so.
I wish your family a happy holiday season and a better 2017.

 

[cbg]

In fairness, the smaller a company is the harder it is for them to function without an employee in place. That's why the law exempted small companies from the FMLA statute. For a company of only 20 employees, having one out for over six months would be a real strain, particularly if they were in bad enough straits so that they started layoffs back in March. To expect that small a company to hold a position open for over six months is not reasonable. I know it's very hard on you and your husband and I'm sorry for that and I hope his health improves soon. But I truly can't see that the employer's options were either illegal or unreasonable.