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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34133
Experience:  Retired (mostly)
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I have been on Medical leave since feb 2011 I have been approved

Customer Question

I have been on Medical leave since feb 2011 I have been approved for many extensions until now On Dec 14 company wrote letter saying my leave is indefinite and will extend no more. Is this separation known as being fired and can I get unemployment until I can get a job that can accommodate my disability. Also company said they will separate me on Dec 14. When will my health insurance stop? I am eligible for medicare.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

The California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) both provide protection for an employee from termination/firing based solely on the employee's medical leave -- limited to 12 weeks in any 12 month period. After expiration of the 12-week protection, an employee can terminate/fire an employee "at will:" at any time, for any reason, or for no reason at all. Cal. Labor Code 2922.

Your separation from employment is an "involuntary termination" (i.e., firing). You are ineligible for unemployment insurance benefits, unless you are "able and available" for full-time work. You would be eligible for State Disability Insurance (SDI) benefits, in lieu of unemployment benefits, but only if your employer's private disability benefits were not granted a waiver by the California Employment Development Department (EDD), so that the private plan was used as a substitute for state SDI.

Assuming the worst case, if you have been off work and reciving disability for more than one year, then you are entitled to apply for and receive federal Social Security Disability Insurance (SSDI) -- or, if you are eligible for full Social Security Retirement (65), then you would be entitled for those benefits instead of SSDI.

Concerning your health insurance, you will be individually responsible for paying the benefit premiums for the next 18 months (COBRA continuation coverage). If you are eligible for Medicare, then that will almost certainly be less costly than your employer's private insurance (though, you may have to purhase a private supplemental insurance policy in order to pay the amounts that Medicare does not cover.

I think that about covers your questions. Please let me know if I can be of further assistance.

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Customer: replied 1 year ago.
I tried to explain to you in this difficult format that I will either be separated or fired my letter from my employer said separated so I would assume I will be eligible for unemployment full time with limitations as a partially disabled person. I want to know if my employment stops in Dec 14,12 when will I need to sign up for Medicare? I collect social security and can work but not doing the previous job because it is constant standing and contributed to my disability. I am not a cripple and want to ask again and I wasn't clear about unemployment I needed more time and can work in a job with limitations which I would think would make me eligible for unemployment. I did not leave the company!
Expert:  socrateaser replied 1 year ago.
A "separation" from employment, if it is done without the consent of the employee is an involuntary termination. An employee who is involuntarily terminated is entitled to unemployment benefits if he or she is "able and available for full-time work." If you can work a full-time job, but not your current full-time job, then you are able and available for full-time work, and therefore you are entitled to unemployment benefits.

Being "fired" is also an involuntary termination. From the viewpoint of EDD, there is no difference.

However, if your employer is askingyou to sign a "voluntary separation" agreement, then that is a "voluntary separation" and you would not be entitled to unemployment benefits, unless you can show that the separation was made under circumstances where you were subjected to a "quit or be fired" scenario. If this is the nature of the separation, then you need to have it expressly stated in the separation agreement, that your refusal to voluntarily separate will result in your immediate termination. That way you will have evidence of your lack of actual choice in the termination of your employment.

If your employment terminates on 12/14/2012, then you may want to apply for Medicare immediately.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34133
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
the companies letter said that they have granted me 18 additional months beyond my eligible leave entitlement. Therefore my additional leave is denied because they determined it to be indefinite. So they will process my separation from employment effective Dec14,2012. I then will refuse to sign any voluntary separation agreement since they are letting me go and will not extend my medical leave who whick the Doc wrote to jan 17,2012. Do you have any idea how much longer my medical insurance will run for. I know I will have to sign up for Mdicare part B. Trying to prolong as long as I can. Not a good idea. answering my own question. As I told you I retained an attorney who never a swers anything error on my part. Nervous sorry I will use you in the future. Please answer this again with clarity
Ike before .
Expert:  socrateaser replied 1 year ago.
Under federal COBRA law, your right to benefits continues for up to 63 days after the termination of employment. If you pay the full cost of health care benefits to the employer by no later than that 63rd day, then your benefits will remain in force throughout that period. And, if you pay for the following monthly benefit, your benefits will continue.

If you do not pay by day 63, then you will be personally liable for any health care provided to you from the date of termination of employment -- not counting whatever period of time your last payment for health care is considered to pay for your health care plan (which could be until the end of the week or month, etc. -- there's no rule -- you will have to contact the health care plan and ask).

The point is that you can control how long your health care benefits will continue -- you just have to pay for the benefits from your own resources.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34133
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
You are excellent. One brief follow up question. I wasn't clear about the health insurance answer. I pay $70 a week for Aetna job ends Dec 14 when does insurance end? Does cobra kick in or do I need to do Medicare ASAP. My attorney doesn't want contact with the company so I can't call company. I am getting in touch with her ASAP if she responds because the company will of. Of course give me health insurance answers. Hands tied until I talk to her don't know what she has up her sleeve. Meanwhile I needed you help because I am nervous and need to have correct answers. Last question if the company asks me to sign that voluntary termination I will recuse to sign. Please answer that for me? Thanks
Expert:  socrateaser replied 1 year ago.
I pay $70 a week for Aetna job ends Dec 14 when does insurance end?

A: No way to answer the question. You will have to ask Aetna, because your employer may be collecting the payments and transferring them to Aetna one per month.

Does cobra kick in or do I need to do Medicare ASAP?

A: COBRA applies from the date of termination, and extends for 18 months thereafter. You must pay the entire cost of your insurance to the employer in order to maintain benefits, however, you can wait up to 63 days to decide. If you choose COBRA, then you would owe for any unpaid health care payments retroactive to the date of termination of employment. Medicare will undoubtedly be less costly then Aetna.

My attorney doesn't want contact with the company so I can't call company. I am getting in touch with her ASAP if she responds because the company will of. Of course give me health insurance answers. Hands tied until I talk to her don't know what she has up her sleeve. Meanwhile I needed you help because I am nervous and need to have correct answers. Last question if the company asks me to sign that voluntary termination I will recuse to sign. Please answer that for me?

A: I am not permitted to advocate a course of conduct. You must make the decisions with the information provided. If you sign a voluntary separation, then you will have quit, and you will have to prove to EDD that you were actually involuntarily separated.

If you do not sign the voluntary separation, then you will lose whatever benefits the employer is offering as an incentive to sign the voluntary separation (maybe no benefits at all). If there is an offer of money as incentive to sign, then the separation agreement will almost certainly contain an agreement to waive your right to sue for unlawful discrimination. I'm sure your attorney wouldn't like that idea, but once again, the choice is yours. Maybe the money offered is worth giving up your right to sue.

Hope this helps.

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