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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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If someone has a medical problem that requires surgery that will not allow them to return

Customer Question

If someone has a medical problem that requires surgery that will not allow them to return to work for a minimum of 4 months do they have to resign from their job? They do not receive any long or short term disability benefits and the employer will not give me any information about my future employment other than they I have to work up until the day before the surgery and I will not be paid for the time they are out ?? Please help, I am trying to help a friend who is 28 years old and has to have open heart surgery in two weeks.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your friend's situation. My goal is to provide you with excellent service today.

If they will be out a minimum of 4 months, then even if they qualified for FMLA leave, their job would not have to be held for them beyond 12 weeks.

Under the law though, they may apply for State Disability and for as long as they are disabled, recovering and unable to return to a job, for up to a year, they will get the same amount of money as they would if they filed for unemployment.

And, if they lose their job because they are let go through not fault of their own---because of a serious illness---then when they are able to return to work full time, if their job is no longer available, they will qualify for unemployment benefits.

So, your friend will be eligible for state disability insurance benefits, and if your friend loses their job, they will get be eligible for unemployment as soon as they are able to go back to work. This means that they benefits for disability and unemployment will essentially be a seamless transition---with the exception of the first week of unemployment which is a waiting week in which no benefit is paid.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
Customer: replied 1 year ago.


Do the same laws apply in MA, I noticed the reply mentions CA law? Also, the Medical insurance is under the employers policy but is 100% pd for the employee by a weekly deduction. Is the employer required to maintain the insurance if the employee continue to pay ?

Expert:  LawTalk replied 1 year ago.
Good afternoon,

My Answer to your question mentions California because your question was posted in the CA Employment Law category.

Unfortunately, no, the state of MA does not have state disability like CA and a few other states.

If the employee is in MA, then they will not be eligible for any benefits until after they have recovered and are able to return to work. If the employer no longer has a job for them at that time, then under MA law, they will be eligible for unemployment.

As for medical insurance, of the employer has 20 or more employees, your friend will be able to continue his medical insurance through the COBRA coverage that is available to him. He must continue to pay the premium on a monthly basis, not weekly, and he can be covered under COBRA for up to 18 months.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
Customer: replied 1 year ago.

After the question was posted it came up under CA law and it did not give me an option to change it. Should I continue with you or Transfer to a MA law expert?


 


My follow up question is should he resign from the job now? The job requires heavy lifting and other duties he will not be able to do. The Dr's have told him he will most likly( depending on the outcome of the surgery and the recovery) be best suited for a desk job for which he has no training. Please advise or transfer me if you think I should be working with a MA expert. Thank you for the advise you have provided
so far. I'm happy to continue to work with you if you ca provide info that pertains to MA.

Expert:  LawTalk replied 1 year ago.
I am perfectly capable of answer about MA employment law. CA employment is the only specialized category we have in employment law.

I answer for all states, in addition to CA.

No, under no circumstances does he resign. If he resigns before he has to go in for surgery, then the will be denied unemployment benefits when he is able to look for work again. he must not resign.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug
Customer: replied 1 year ago.


Thank you, XXXXX XXXXX as the medical insurance coverage you said he be covered under cobra for a co with 20 plus employees. This company does not have 20 more like 5-10. If he makes arrangements to cover the payments can they still drop him from coverage? Is there anything he can do? The surgery is this month which is already pd for because we pay a month in advance. What will happen at the end of the month and do you have any advice as to what he should do? He needs highly skilled Drs and Hospitals and will need lifelong care and follow up.

Expert:  LawTalk replied 1 year ago.
Good afternoon,

If there less than 20 employees, then he will lose his coverage as soon as he loses his employment. He should pay another month in advance if he can. Aside from that, there is nothing that he can do. The law does not mandate that his employer continue to provide insurance once he is no longer an employee.

However, there is a chance that because the employer pays nothing, that the company will allow him to continue on an individual plan, and he should look into that immediately.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug
Customer: replied 1 year ago.


Here is where it gets confusing... He will be working up until the day before he is hospitalized. At that point he will just not be showing up for work for an unknown period of time.


 


He will not be terminating his employment nor will his employer be laying him off or terminating his employment. The Co is a sub chapter S Corp but, they do not have any policy's procedures employment quidelines etc. it is basically what ever the owner dictates at any given time and he is never rational or consistant on any decisions, never puts anything in writing, and changes his mind and goes back on his word on a dailybasis. So, basically he has no idea where he stands and, at this point the employer is not committing to anything and is taking a wait and see what happens approach.


 


BotXXXXX XXXXXne the question is... if he has not quit, has not been laid off or terminated, is he still employed? What needs to happen by law to determine his employment status and, if no action is taken is he technically still employed by the company? If yes, do they still have to offer him the option to continue to pay for med insurance under the same plan?


 


It is clear to me that his employer does not want to lay him off because he would be eligable for unemployment and his rates will go up and he has no grounds to fire him!


 


So now what ? Can his employer be forced to take a stand on his employment status?? Ideally if he was laid off that would be the best possible scenario for him finacially and emotionally. I really appreciate your advice thus far and if you have any thoughts/advice on what he can do to get some type of finacial aid to pay mortgate, car payment etc.during this difficult time it will be greatly appreciated. Thanks again for all your help!

Expert:  LawTalk replied 1 year ago.
BotXXXXX XXXXXne the question is... if he has not quit, has not been laid off or terminated, is he still employed? Yes.


What needs to happen by law to determine his employment status and, if no action is taken is he technically still employed by the company?
He is an employee until he resigns or is terminated. If yes, do they still have to offer him the option to continue to pay for med insurance under the same plan? No, as he will be a non-working employee, unless they continue insurance for other non-working employees---essentially as a policy, they can terminate his eligibility for insurance based on his not working, but not terminate him from his position.


So now what ? Can his employer be forced to take a stand on his employment status?? No. If the employer chooses to allow him to be a non-working employee and still pay for medical coverage--great, if not, there is little he can do about it. Ideally if he was laid off that would be the best possible scenario for him financially and emotionally. I really appreciate your advice thus far and if you have any thoughts/advice on what he can do to get some type of finacial aid to pay mortgate, car payment etc.during this difficult time it will be greatly appreciated. Thanks again for all your help!

 

There is no free money out there---I can assure you of that. If his disability will last longer than a year he can apply for social security disability. Otherwise---there is little for him in the way of government benefits.

 

 

Thank you for your kind words. They are appreciated. Please keep in mind that until you rate me highly for my service, I will not be credited with helping you.

Thanks again.

Have a great day,

Doug


LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 3 other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service. It has been my pleasure to assist you and I hope you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (8-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.
Customer: replied 1 year ago.


ok

Expert:  LawTalk replied 1 year ago.
Have a great evening,

Doug

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