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TexLaw
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4164
Experience:  Contracts, Wrongful termination and discrimination
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I have been on sick leave since January 23th, due to a surgery

Resolved Question:

I have been on sick leave since January 23th, due to a surgery and a complication. I just had to have another surgery on February 28 due to another complication from the previous surgery.

I have a doctor's note for everyday I have missed and plan on returning on March 8.

My employer does not have any benefits, such as sick leave or paid time off. There have been other employees to cover me as I have been out. They are now threaten me with termination of my employment.

My question is can my employer fire me due to being on medical leave? Are there any Missouri laws that protect the employee in this situation. And if they do end up firing me, will I be able to collect unemployment?
Submitted: 1 year ago.
Category: Employment Law
Expert:  TexLaw replied 1 year ago.
Hi,

Thank you for your question.

How many employees does your employer have?
Customer: replied 1 year ago.

7 office employees and 50 drivers-some that are part time. It is a medical transportation service. I do the accounting for this employer, the office employees have been covering me since all the medical stuff has been going on.

Expert:  TexLaw replied 1 year ago.
Are you sure that the drivers are employees rather than independent contractors?
Customer: replied 1 year ago.

Most of the drivers are independent contractors. Does that make a difference in my employment since I am in the office? Or does that have to do with the amount of actual employees the owner has to have? It is a small business.


 


Are there any laws that can protect me from being fired? I have kept in contact with them the whole time I have been out. Any help is appreciated.

Expert:  TexLaw replied 1 year ago.
Hi,

The number of employees determines whether or not the Federal Family Medical Leave Act applies, which would have applied to provide you with 12 weeks of unpaid leave for you condition without being terminated. Unfortunately, it requires 50 employees.

If you are terminated, you can challenge the independent contractor status of the drivers (they may actually be employees rather than ICs) by filing an FMLA claim with the US Department of Labor Wage and Hour Division (contact your local office).

You might have protection under the Missouri Human Rights Act depending on whether you could qualify as disabled. What was the surgery for?
Customer: replied 1 year ago.

I had a lithotripsy to break up multiple stones in my left kidney. Then I developed a complication to that surgery which resulted in a hematoma..in my kidney...this is a very rare complication. Then last week I had another cat scan and they found a stone stuck in my ureter and had emergency surgery to remove that stone.


 


Again I have been having constant contact with my employer. But they are now threaten me with my job.


 


Under HIPPA laws do I have to release my medical information to the employer?


 


If I do get terminated, would I be able to get unemployment under wrongful termination or something like that?

Expert:  TexLaw replied 1 year ago.
I'm very sorry to hear about that! I have kidney stones too and they are very painful!

Kidney stones have been held to be a qualified disability under the Americans with Disabilities Act. You should send a letter to your employer stating that the kidney stones are a disability and the Missouri Human Rights Act requires that the employer provide reasonable accommodation, including additional time off to recover from surgeries, for employees with such disabilities.

If your employer does fire you, then you will need to make a claim for discrimination with the Missouri Department of Labor.

If you do get terminated, other than making a claim, you would likely qualify for unemployment as the termination was not for cause.

Please let me know if you have any additional questions. Please also remember to rate my answer positively so that I am compensated by the website for my work on your question.

Best Regards,
ZDN
Customer: replied 1 year ago.

Thank you for your assistance.


 


Just one more question, the part where you said if I do get terminated, other than making a claim, I would likely get the unemployment.


 


Does that mean that if I want unemployment then I do or do not make a claim for discrimination?


 


Or am I allowed to do both in this situation? Sorry just a little confused.


 



Thank you again and I will Rate you as soon as this question is answered.

Expert:  TexLaw replied 1 year ago.
You are allowed to make both claims at the same time. If you recover any back pay under the discrimination claim you would have to reimburse the state for the unemployment benefits.
TexLaw, Lawyer
Category: Employment Law
Satisfied Customers: 4164
Experience: Contracts, Wrongful termination and discrimination
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