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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Employment Law
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Experience:  19+ Years of Legal Practice in the Employment law arena.
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I was fired while I was in the hospital.

Resolved Question:

I was fired while I was in the hospital.
Submitted: 4 years ago.
Category: Employment Law
Expert:  AlexiaEsq. replied 4 years ago.

Dear Customer

 

Thank you for your question and I look forward to working on your answer. Also, it is important to know that I can only respond to your post and the information contained in it, as I do not know what you know, unless you describe it fully. Also, because you are at this site, you are asking me the question because you want the legal facts, as I see them, even if unfavorable to your situation from a legal perspective. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if I ask a redundant question.

 

That being said, if you would like me to work on an answer for you, and in order to better assist you, could you please clarify for me:

 

1. Did you have a written employment contract with the employer?

2. What were you admitted for?

 

I look forward to getting to work on this for you. Hang in there!

 

 

Sincerely,

 

S. Joy, Legal Expert

 

Please note: I do not provide legal advice, only legal information; I do not legally represent any JA members, visitors or customers. We do not and will not enjoy an attorney/client relationship. Further communication with me here is an acceptance of this and any information provided by me is with the understanding that you comprehend this and agree.

 

At times there can be a delay of an hour or more in between my answers because I may be helping other customers or taking a break. In addition, if it is late at night, EST, and we are between postings, I may go get some shut eye, but I'll be back the next day, so never fear.

 

Customer: replied 4 years ago.

On Thursday December 10th 2009 I confronted a coworker named Scott, about an order we were working on together. I felt that he became overly defensive and angry towards me. Throughout the remainder of the day, I tried talking to him and working things out with him on several occasions. He did not want to talk or work things out with me. I then spoke to my assistant supervisor Brandon, about the situation and asked if he could talk to Scott and meet with us to work things out.

The following day on Friday December 11th 2009, Scott was still angry at me, and would not talk to me and was none verbally aggressive towards me. At the end of the day I talked to my supervisor, about the situation, and asked him to talk to Scott, so that we could get along and resolve the conflict. I did what I could to the best of my ability to work out this problem at work.

During the middle of this second week of December around the 9th, I called my counselor David at Keiser Mental Health/Addiction medicine. I talked to him on the phone about entering myself into an Impatient Treatment Center. I did this because I have a Disease which was causing me to have problems with my employment and my personal life. He told me that he would set up an appointment with a nurse named, who would perform an assessment of my medical needs and who could enter me into an Impatient Treatment Center. I knew my Disease was causing me to have problems at work and in my personal life and I wanted to seek treatment for my Disease. XXXXX XXXXXon scheduled me for an appointment the following week on Tuesday December 15th 2009 at 3:15pm.

The following week on Tuesday December 15th 2009, at the end of work my Supervisor asked to speak with me in private with another Supervisor. My boss said that he interviewed all of my coworkers about what they thought of me and what they thought of Scott. He told me that it had become apparent to him that my coworkers said that sometimes that I was a really nice guy and that other times I could become very aggressive. And that people were scared of me because they did not know how I would react to them. Hiram questioned me about my aggressive behavior and asked me what was going on. I told him aggressiveness gave me a drive to work hard, fast and efficient. And when I’m focused on work I’m not focused on my interpersonal Relationships, I can come off as aggressive. But when I am focused on people I am a really friendly helpful guy.

My boss then suggested to me that maybe I could keep being aggressive while working, and drop the behavior when dealing with my coworkers. He suggested that maybe I could play it solo for a while and work by myself and avoid people for a while. He then told me that he would be going to Utah on business for several days, and that I had those several days to change my aggressive behavior, and that things need to be different with me by the time he got back from Utah. He then asked me if there was anything that I needed to say, and that this conversation was confidential. I could not speak, because I had broke down crying. I knew that I needed to receive treatment and medical help.

After Talking to my boss I went home and cleaned up for my appointment with the Nurse r. At 3:15 on Tuesday December 15th 2009 I met with My Nurse , to be assessed for my medical needs and we decided that I would be admitted to the hospital the following day on the 16th of December 2009 for Medical Treatment. Nurse XXXXX XXXXX gave me a note excusing me from work, stating that I will be admitted to the hospital on Wednesday December 16th 2009 and would be excused from work until further notice.

I gave this my medical release note to my mother give to the appropriate persons at my work on December 16th 2009 to notify them that I was admitted to the hospital and was unable to come to work. On the 16th of December 2009 I admitted myself to the hospital, and my mother gave my medical work release to the appropriate persons at my work. My work called my mother back a day or two later and asked her to tell me to call them as soon as I was medically able, so that they could get started Processing my medical leave, with Human Resources.

I was in the hospital from Thursday December 16th 2009 to Friday January 15th 2010. During my stay at the hospital my ability to contact my employer was limited and I tried to contact my supervisor as often as I could. On several occasions I called Platt and was transferred to my department, and left a voice mail for my supervisor letting them know that I was in the hospital, and would keep calling them and would give them a release date as soon as I could.

On December 24th 2009 I called my worked and talked to Bill. I asked to be transferred to the receiving department so that I could talk to my supervisor. He said that he can transfer me and that the department had probably gone home, and that there would be no one to talk to. I asked him to leave a message for my supervisor Hiram Maldonado telling them that I’m in the hospital, I’m ok and that I would give them my release date as soon as possible. Bill told me that I should call back Monday to talk to someone and that he would transfer me to the Receiving department so that I could leave a voicemail for my supervisor. After he transferred me there was no ringing from the receiving line and there was only a weird clicking noise, I stayed on the line for half a minutes waiting to be connected and then hung up.

During the last week of December 2009, the 28th to the 31st, I called the receiving department to talk to my supervisor and left a voice mail stating that I would probably be released from the hospital and back to work between January 11th and 15th 2010.

On January 5th 2010 I finally got through to the Receiving department and spoke to the assistant supervisor Brandon. He told me that the head of Human Resources Rodger wanted to talk to me. The assistant supervisor transferred me to Rodger Moore, and the following contains what I remember of the conversation I had with him:

Rodger more asked me how I was doing and I told him that I was doing really well, and when I would be returning to work. Rodger told me that I was currently in Violation of Platt’s attendance policy, and that I had also been in violation of it in the past. I asked him when and he said ”Do you want an exact date”? And I told him that I have never had any attendance issues or have ever been disciplined for breaking Platt’s attendance policy. He told me that I was currently in violation of the attendance policy which I signed upon my hiring. Stating that I just disappeared and did not make any attempts to contact my supervisor, and that all he got was a note from my mother stating that I had been Admitted to the hospital. He asked me why I was in the hospital, and what hospital I was at and I told him that it was confidential. I asked if we could meet, and he offered me to come in on Monday January 11th 2010 at 10:00am. He told me that I would need to bring documentation of what hospital I was at, the dates and time of my hospital stay and why I was in the hospital.

I agreed to meet him on January 11th, and asked him to repeat what he wanted me to bring. He then told me “why should I let you come back and be part of our work force”. That he has documentation that I ran into people and Kicked their chair. He also said that I had been trying to intimidate people, and I told him that I wasn’t knowingly or purposely trying to intimidate people. He said doesn’t care.

He then mentioned that I got so angry that I had to go outside and run around to cool off, and why should he let someone like that come back to work. I then told him that my assistant manager had shoved a donut in my face, and if he had done that to you would have been very angry too. Rodger then became silent for a moment.

He said that I broke the attendance policy and that I have an anger problem. I could have called my supervisor any time and I purposely failed to do so. His tone of voice seemed aggressive and intimidating to me. I said to him that he hasn’t given me a chance to speak, or that I would like to speak and have him listen. I tried to explain that I was admitted to the hospital and called and left several voicemails to my supervisor.

He told me that he doesn’t like my attitude with him, I asked him to let me please speak so that I can get my point of view across. He said he doesn’t care about my point of view, and who do I think I am trying to get my Job back after everything I have done.

I kept telling him that I’m just trying to get my point across and tell him my point of view. This conversation persisted where He said that He doesn’t care about my point of view and who do I think I am. He continued to say again that he doesn’t like my attitude. At one point I said It seems like you have and attitude with me, you won’t let me speak I’m trying to tell you my point of view and what happened. Can you listen to me? He continued to say he does not care about my point of view. His tone of voice was angry and intimidating.

Rodger then said in a loud tone, who do you think you are, you’re trying to intimidate me. I’m not afraid of you; you’re going to come in on Monday and try to bully and intimidate me. I’m not going to let you do that. I said I’m trying to get you to listen to my point of view, can I speak. He then said don’t bother coming in on Monday. I asked if he is terminating my employment. He then said yes. I asked him can you tell me for what reason, he did not answer and had hung up on me.

I was in Treatment and in the hospital to treat personal issues that were affecting my employment and personal life so that I could receive the Medical help I needed to better myself and my employment. I was using Methamphetamine at work. But the company did not know or did not nring up drugs or drug test me. Rodger the head of Human Resources terminated my employment while I was in the Hospital. I don’t know if that is illegal or wrongful termination.

Based on our conversation I thought I was terminated based on what he said to me, that I broke the attendance policy. I have two witnesses who will attest, and who I can get statements from that I was not speaking to Rodger Moore in an angry, negative, intimidating tone of voice. That I was Respectful to Rodger and that I continually asked him to let me speak.

After my conversation with Rodger. My Therapist at the hospital talked to me about extending my treatment for another seven days so that I could further work on my issues, and continue my treatment. I accepted and ended treatment on 1-15-10

The letter I received from work states that I was terminated for “insubordination” based on “The phone conversation between the Director of Human Resources and Mr. Metoday. And that other circumstances were taking into consideration: “ Numerous and ongoing performance issues including complaints from several employees that Mr. Me had repeatedly and inappropriately confronted them in an aggressive and intimidating manner. Along with four verbal warnings on the dates of 8-23-08, 12-3-08, 9-22-09, 12-15-09. Platt’s policy states that a person will receive a verbal warning for a violation of Policy, followed by a written warning (write up) and the appropriate disciplinary action.

I have never had any disciplinary action taken against me for breaking policy. I have been spoken to on four occasions over the past two years of employment for the following reasons. 8-23-2008 and 12-2-08 were because of a performance issue such as sending the wrong product to the wrong branch or sending damaged product.

On 9-22-09 I had an argument with my coworker Nick, and was spoken to by my previous supervisor. That if I have a problem with somebody I need to talk to him or if I have to go outside to get some fresh air to cool off, and that he doesn’t want to have to write down and document that I can’t control my anger. There were sever occasions where Rich yelled at me for messing up a wire order in front of my coworkers, which I cried because I felt emotionally violated. And another occasion when I was driving a forklift and Rich said “Hi Tank” and squeezed my arm with his fingers extremely hard and caused injury to my right bicep muscle.

On 12-15-09 My supervisor confronted me with Ed about my recent aggressive behavior. And told me that I had several days to change my behavior while he was out on business in Utah. And that I need to have control over my aggression by the time he got back or my job would be at stake. I was admitted to the hospital the following day on 12-16-09 seeking medical treatment for issues that were causing recent problems at work and in my personal life, which was drug abuse, I went into rehab. Yet when I was in the hospital on the 1-5-10 Rodger Moore terminated my employment for those reasons that my supervisor Hiram Maldonado said I had several days to take care of and change my behavior while he was out of town in Utah.

On 1-11-10 The president of the company talked to my mother on the phone about what was going on with me. She told him that I was having problems at work and recognized my part in them and entered myself in a treatment center for addiction rehabilitation, to try to fix things at work. The president knows that I am an awesome worker and have worked with The company off and on for five years. Jay asked my mother to have me call him.

I called him around 2:00pm on 1-11-10 from the hospital. Here are the details that I can remember of our conversation. I told the president that I was in an addiction treatment center and that I had relapsed in mid November 2009. He asked me what drugs I have been using and I told him that I was using drugs off and on for the past two years. He asked me what hospital I was in and I told him that it was confidential. He said everyone in the warehouse was scared and that he had 5 security guards there. I told him that I’m not a threat and he stated that me on drugs is a threat and I agreed. He asked me that if I could, would I want my job back. I hesitated to answer, and Jay said that I can say yes, no, or I’m not sure. I told him that I’m not sure and that I will need more time to think about it. Jay then said that he does not know if he could get me my job back or not. And that he understands and that I can call him anytime I wanted.

The president was really respectful on the phone with me and was understanding. Jay showed a lot of character to talk to me in such a mature manner, and I have a lot of respect for him. I have remained sober since my release form treatment.

Before being Hired I signed an agreement to the companies policy and that my employment was at will.

Expert:  AlexiaEsq. replied 4 years ago.

Dear inmeat,

 

OK, so you didn't have a contract of employment that could protect you in ways not otherwise available in the law of Oregon. I assume then that you did not. Therefore, let's go over some of the law as it now stands.

 

Generally, if there is no written employment agreement to the contrary, the employer has discretion to dictate the terms of employment; this would include promotions, job changes, lateral moves, salaries, etc., attendance requirements, notification of illness requirements, behavior requirements, etc. "At will" also includes the mutual right of employee and employer to terminate the relationship at any time, without notice, and for any reason. The only exception is that the employer is more limited in that "any reason" for termination or for differential treatment can not be due to reasons of illegal discrimination, such as discrimination based on race, religion, gender, age, disability, etc.

 

What this means for most of us, is that the employer can, unfortunately, yank us around quite a bit. It can change its minds, make mistakes, remedy them as it sees fit, etc. at its convenience and the only real recourse we have is to end the relationship if we don't like it. It is a rather hollow right,I know, considering how much harder it is for employees to obtain other suitable employment, than it is for an employer to get a new suitable employee.

 

In your case, I would look to see if there was feasibly in illegal discriminatory reason for the treatment/termination. (Go to http://www.eeoc.gov/ for more information on these illegal discriminations.) I wish the law were a bit more geared toward the employee, but it seems that employers lobby Congress and state legislatures while employees don't (for obvious reasons).

 

So, yes, an employer can terminate you even you are perfect. However, it can also terminate you for leaving work for a medical issue for a month (or a day), for aggressive behavior, or for whatever it wants.

 

Now, I suspect you are interested in the idea of whether you had protections due to an apparent disability. You indicate you may have consumed excessive alcohol or drugs, as you indicate you are 'now' sober. Please know that the ADA does not prohibit an employer from terminating an employee with a disease or disability if the are unable to do their job. Clearly here, you were unable to do your job appropriately, as you admit. Now, had you been able to do your job, despite your disability, if given a "reasonable accommodation" by your employer, that COULD be a protection and you could arguably get your job back with this reasonable accommodation IF that is why you were fired - perceived inability to do your job. However, they employer likely wouldn't be in any trouble, since they didn't deny you any reasonable accommodation - in fact you didn't ask for one that was medically indicated. Doesn't mean you might not succeed in getting your job back on that basis - just that you did not actually ask for that RA.

 

Also, if you consumed alcohol or drug on the job, or came to work under the influence (beyond any appropriate script dosages), that is an allowed reason for termination, regardless of a disease. They can't discriminate based on the disease and assumptions on same - only for actions you choose to take.

 

Now here is where there may be the biggest factor in your favor, and it may apply if your employer had at least 50 employees: If your medical provider,deemed it medically necessary that you have inpatient treatment (or even stay home and rest) for up to 12 weeks (or less), your leave should be covered under FMLA. Clearly your employer was advised you were in the hospital. While employer can demand medical certification from the medical provider and you have little right to confidentiality in that regard (obviously, or how else can you prove a medical necessity?), your LEAVE may be protected leave - meaning, they couldn't terminate you based on the the fact that you took the leave. It is complicated, and you would have to present a good reason for not providing all the elements needed to effecuate FMLA, but the employer is also responsible for categorizing FMLA leave even if an employee isn't aware of a right to claim it, and if a medical cert. is demanded by the employer, it needs to be actually requested by that employer, which is clearly didn't do.

 

So, under FMLA, you may have had a right to the time off (unpaid) and under ADA you MAY have a right to a reasonable accommodation if it will enable you to do your job (ie. working largly solitary, away from people). If you violated rules aside from the above (such as on the job under the influence), behaving badly, you may not be able to escape the right they had to terminate you, but the FMLA issue may give them pause to consider to "settle" this amicably and hire you back.

 

http://www.eeoc.gov will provide additional reading to help you determine if you may have an ADA protection.

 

Hope this helps to clarify. If it does, please click ACCEPT and follow up if needed after you do so. Also, if you exceeded the one question one answer standard, and the expert provided you with answers to your additional questions, BONUS is an appreciated way of saying thank you! This expert's credit proceeds go towards providing volunteer provisions for the disabled. Thank you for helping!


 

I believe I have answered your question and I hope you a better understanding of your legal issue as a result. As you know, I am only the messenger, not your attorney, nor can I create favorable law if it doesn't exist, so please don't hold it against me if the legal result is not what you wish. ACCEPTING the Answer a so ensures I will be able to assist your with your future legal question. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of a new post. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break, or if it is late at night, I may have to go get some shut eye til morning, but rest assured, I'll be back for you. Thanks

Sincerely,

S. Joy, Legal Expert

 

 

My Standard and Required Legal Disclaimer. The information given by me here is not legal advice. You should not and may not rely on anything on this website as legal advice and you agree that the nominal price you may voluntarily pay for information here clearly does not pay for any legal advice. I am neither establishing nor accepting an attorney-client relationship with you. You must hire an attorney in your state as a matter of law, in order to receive legal advice and attorney/client relationship and rights. I do not claim to be licensed to practice in the state where this information is being provided or whose law would apply, if any. My licensing credentials are noted in my profile, which you have full access to. As law is always changing, you are recommended to consult with the appropriate legal counsel in your jurisdiction for accurate and complete information. Thank you, XXXXX XXXXX a great day.

 

AlexiaEsq., Managing Attorney
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Experience: 19+ Years of Legal Practice in the Employment law arena.
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