My Health or My Job?

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stage3survivor

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At the age of 33, I was diagnosed with Stage 3 breast cancer in November, 2008. Doctor appointments, surgery and chemo treatments began immediately. I continued to work until I had my 1st surgery and chemo began. From January – December 2009 I worked intermittently on medical leave. I returned to work in mid December of 2009 and have been working full-time hours since, using sick days to cover cancer treatment days and oncology visits. I must have 1 of 2 reconstructive surgeries soon (removal of an expander to replace with an implant) as it is well overdue. The original date for my surgery was June 11, 2010. On May 20th, I informed my supervisor of my surgery date and 6 week recovery period. She returned to me with a decision from "administration" that my leave would not be authorized because I have exhausted my medical leave benefits and that my position would be terminated once I leave for surgery. With the prospect of being jobless in 2 weeks and unsure of my legal rights, I asked my doctor if I could postpone my surgery till the next month, just to buy some time to earn at least 2 more paychecks and also to get advice about my rights. My surgery is currently scheduled for July 2nd. On Monday, I emailed HR to inform them that I am having surgery and that my recovery time is slated for 6 weeks. I asked them to send me any paperwork that is used to process such a request (I wanted something in writing). I received an email stating the following:
Unfortunately, as we previously discussed with you, your medical leave request cannot be authorized, as you have already exhausted your medical leave time within a twelve month period. Please let us know when your last day of work will be so that the program can make the necessary arrangements for program coverage. Thank you.
I have not yet received a termination letter or anything like that. Should I expect to receive anything else in writing about their decision? I never formally put in a request for my surgery nor was I given an opportunity to present or argue my request. I feel cornered. I understand that I have exhausted my medical leave, but I feel like I am being asked to choose between my job and my health. I didn't ask to have cancer. I was hoping that my job would accommodate me somehow. I know they could if they wanted to. I feel that there is an ethical issue here more than anything. I have reviewed the Women's Health and Women's Cancer Act (WHWCA). I've called the Federal Labor Offices and am waiting for a reply. I feel that if insurance companies recognize and cover reconstructive surgeries according to WHWCA, I think that the legal obligation of an employer should coordinate with this law. What are my rights here if any? I don't want to choose between my health and my job.:confused:
 
And you've exhausted your FMLA leave for this FMLA year? Or you won't qualify for more until you've worked 1,250 hours in this FMLA year?

Does your employer use the calendar year for FMLA tracking? I'm a little unclear about how long you were out full-time, whether you missed any time since you've been back for this condition.
 
My company uses the fiscal year, ending in June. For the year 2009, they've explained that I have exhausted medical leave. According to "HR" (through my supervisor), I will qualify for additional medical leave time in November of 2010. I went on intermittent leave from January 09-May09. Then again I went on intermittent leave from July 23, 2009 - November 2009. I have been working full-time since December 2009.
 
I understand that your FMLA leave is exhausted for the current tracking year.

What I'm not sure about though is the November 2010 eligibility. I'm assuming that is because you will not have worked 1,250 hours starting in July 2010 until November. However, I'm unclear on wehther that 1,250 hours has to start over again in July or not.

cbg will know when she gets here.

Having said that, though, is jeopardizing your health really worth delaying your surgery/treatments? There are some social service programs that can help you if you are temporarily disabled. Plus, since you are in NJ (I assume you worked there as well as live there), you should be eligible for state disability benefits as well.
 
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As a person being treated for cancer, my health insurance is very important. I will have to pay almost $500 out of pocket for the months that I am out of work. I did not get the chance to discuss or even have the opportunity to negotiate my leave. Maybe I could've pleaded my case to those who made their decisions. Am I entitled to that? There wasn't even an official process for me to put my leave request in writing. I still haven't even received a letter stating the details of this termination. This past pay period, my check was mailed to my home (as opposed to put in my mailbox at work) and it included all my vacation, personal, and sick time because the company already terminated me in their system even though I advised HR in writing of my last working day before my surgery on July 2nd. I wrote them a very strong email, stating that I am still an employee of the agency and asked that they modify my earnings to reflect the actual hours that I worked that pay period. I feel like someone is getting over on me. Something doesn't feel right here and I need to get some clarity.
 
Are you asking whether or not the law gives you a guaranteed right to negotiate more leave? If so, the answer (sorry) is no, it does not. A qualified employee is entitled to 12 weeks of leave, no more, no less, in a 12 month period, unless state law or a legally binding and enforceable contract specifically says otherwise. This holds true regardless of the nature of your illness or the medical necessity for additional leave.

An employer *may* offer more leave if they choose. Nothing in the law will compell them to do so if FMLA is exhausted or if you do not/no longer qualify.
 
That will be up to your employer. You will ultimately receive COBRA information and info on any other benefits you may still have access to (401k, possibly life insurance) but NJ is not one of the very few states that requires any kind of written notification of termination.
 
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