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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6939
Experience:  Significant experience in all areas of employment law.
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Hi, Thank you for your very prompt and professional response.

Resolved Question:

Hi,

Thank you for your very prompt and professional response. I understand the reality of my situation and appreciate your candor.

While I continue to work harder and have more paperwork to deal with due to the disciplinary action, as well as search for new employment, I'm becoming concerned about the level of stress it is creating and how it can effect my health. I have thyroid disease, celiac disease and have been diagnosed with chronic fatigue, so my immune system cannot take too much. I'm working hard and must be careful not to overdo it ...and all for a manager who clearly wishes to see me gone.

I'm now out of my only vacation days (as I haven't used any or called in sick all year) and have not had a vacation in four years due to the state of the economy. So, in the event that the stress causes me to become ill once again, or exacerbates my current conditions, what options do I have in dealing with human resources? I feel stuck between a rock and a hard place and would appreciate knowing all ways of dealing with this uncomfortable situation. I am worn down and have very little energy left.

Thank You,
Marie
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Marie,

Thank you very much for your followup question and your previous positive rating of my service.

If your physical aiments qualify as a "serious health condition" an individual in your circumstance may very well qualify to take FMLA protected leave.

In order to be “eligible” for FMLA, an employee must have worked for their employer for at least one year (as you state you have) and worked roughly 30 hours per week (on average) during that year. Only employers with at least 50 employees within 75 miles of the employee’s worksite are required to provide FMLA protections.

Where an eligible employee takes FMLA leave, an employer is prohibited from taking adverse employment action as a result of that employee's absence, if the employee returns on or before the expiration of the 12-week leave period.

Among other things, an employer can be sued for interfering with an employee’s FMLA leave, denying FMLA leave, refusing to reinstate an employee who timely returns from FMLA leave, requiring an employee to take more FMLA leave than the employee needs, or retaliating against an employee who takes FMLA leave. See here for more information: http://www.dol.gov/dol/topic/workhours/fmla.htm#.ULxK1YVOn-Y

It should be noted that while you may be eligible for FMLA leave, FMLA does not provide absolute, unequivocal job security, it simply prevents an employer from taking adverse employment action against you because of your absence. An employer retains the right to terminate an employee who elects to take FMLA leave if they can demonstrate that the termination was for unrelated reasons. However, most employers will not terminate an employee while the employee is on FMLA because courts and juries closely scrutinize such terminations for improper motives.

In addition to FMLA, if you can demonstrate that your health conditions are job-related, you may be able to file for workers compensation, which would provide for partial wage replacement while you rehabilitated. However, employees out on workers comp do not enjoy any special job protection.

These would be the best options for an employee in your circumstance with regard to dealing with HR. Please let me know if I can provide any further clarification.

Best regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6939
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for your legal advice.


 


I must look into these options in the event that the situation elevates my stress and any illness arises from it. I am not familiar with FMLA or Worker's Compensation and although I do not intentionally wish to head in that direction, I may be forced to have to consider these options.


 


If it is okay with you, I would like to contact you again if I have additional questions.


 


Have a good evening.


 


Marie

Customer: replied 1 year ago.

Hi,


 


You've been very helpful and although I do get the feeling that you may be more of a pro-company attorney vs. employee, I'd appreciate it if you'd be willing to assist me with another question. I'm trying to educate myself here as well as monitor my health and my employment situation.


 


 


I'd like to understand why I might consider taking the route of Worker's Comp and/or FMLA (for a work related health issue) and not short-term disability (non-work related), if necessary. I'm currently paying into benefits which will entitle me to 75% of my salary if I need to use them.


 


As far as my manager and corrective actions are concerned, I can deal with that through Human Resources as a separate issue. Correct?


 


What would you do if you were in my shoes?


 


Thank You,


Marie

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much for your reply. I hope you are doing well this evening.

SDI is certainly an option for an employee in your circumstance, and in some ways easier to obtain, since you don't have to prove that the physical condition causing you to miss work is a work-related injury.

In order to be eligible for SDI, California's EDD states that you must meet the following requirements:

- You must be unable to do your regular or customary work for at least eight consecutive days.

- You must be employed or actively looking for work at the time you become disabled.

- You must have lost wages because of your disability or, if unemployed, have been actively looking for work.

- You must have earned at least $300 from which State Disability Insurance (SDI) deductions were withheld during a previous period.

- You must be under the care and treatment of a licensed doctor or accredited religious practitioner during the first eight days of your disability. (The beginning date of a claim can be adjusted to meet this requirement.) You must remain under care and treatment to continue receiving benefits.

- You must complete and mail a claim form within 49 days of the date you became disabled or you may lose benefits.

- Your doctor must complete the medical certification of your disability. A licensed midwife, nurse-midwife, or nurse practitioner may complete the medical certification for disabilities related to normal pregnancy or childbirth. (If you are under the care of a religious practitioner, request a “Practitioner's Certificate,” DE 2502, from the SDI office. Certification by a religious practitioner is acceptable only if the practitioner has been accredited by Employment Development Department.)


See this link for more information on filing a claim for SDI: http://www.edd.ca.gov/disability/How_to_File_a_Claim.htm

You should understand that FMLA should typically be taken concurrently with either SDI or workers comp, since neither of those programs provide actual job protection and FMLA does. Without FMLA you can claim SDI or file for workers comp, but your employer would be free to then let you go because you are absent.

As far as corrective action against your manager, you are right that the best course of action there is ordinarily to address the problem with HR, as you would have no legal remedy.

When it comes to choosing what to do, I regretfully cannot state an opinion there, as the terms of service of this site prohibit me to providing legal advice. I am only able to provide you with information about the law. How you choose to act is up to you.

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have addressed your followup concerns, I would humbly ask that you again provide a positive rating of my service so that I may receive credit.

Very best wishes and happy holidays.
Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6939
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you

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