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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17406
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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Three years ago I used all of my accumulated sick days at my

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Three years ago I used all of my accumulated sick days at my prior job during one month due to depression related to the sudden death of a friend. I never took a formal FMLA leave nor did I have to make up that time. In paperwork for credentialing my former employer wrote I took one month medical leave for personal reasons. I feel that since I was not on formal leave that this should not be listed as a gap in employment. Further I am wondering what can legally be written about me by my employer regarding the nature of my illness. I did return to that job, worked there for three years and other than that leave never once called in sick.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. Are you saying that you think that this characterization by your employer is somehow negative? If not, what is your main concern, other than what the employer can and cannot say to a prospective employer? In the credentialing paperwork was it required that the employer account for days actually worked?
Customer: replied 1 year ago.

The question my former employer had to answer is whether there a gap in my three years of training. I feel that since my leave was not official but using allotted sick days it should not be listed as gap. I am unsure if I have any legal basis to insist that she not write I had an official gap as this will raise questions every time I go through credentialing in the future.


 


And yes, I think that the characterization can be interpreted in negative way, as writing there was medical leave for 'personal reasons' raised an inquiry by the new employer as to what was my medical condition and reason for the leave. I am concerned that I may be discriminated against for my history of depression. I am wondering what she is allowed to say regarding the nature of the medical leave. Thank you.

Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for your reply. Without knowing what the specific credentialing paperwork says, I can't say with certainty that the notation was correct or not. However, it is technically a time when you were not training that would have normally been work time. As long as your employer would have noted any absence, whether for medical leave or other leave not related to medical time off, for example vacation, as a gap, then there is nothing unlawful in their action. The only possibility of discriminatory notation of your medical leave would be if they only did that in your case, as I mentioned, and not when others who were on non-medical related leave were off. So, if you have evidence that this is the case, then you would want to go back to them and ask them to issue a corrected credentialing form.

As for future employers, it would be unlawful for them to even ask about this medical leave, and also, honestly usually it wouldn't even cross their minds. I can tell you though that the use of "personal reasons" is a non-discriminatory notation and in no way denotes or connotes a psychological problem. In fact it would be unlawful for them to say what your health condition was.

I would say that it would have been more appropriate for them to make a notation of use of sick leave and just leave it at that. So, that would be where you might focus in dealing with them. Since many employees take sick leave from time to time.

But again, as far as future employers go, they cannot ask, nor do they routinely even consider asking about why you were on medical leave. If anyone asks you that, then you simply state that under employment laws that question is unlawful and then you can file an EEOC complaint against them.

Finally, in terms of what an employer may tell prospective employers. They can provide any truthful information about your work history or performance, but cannot discuss private issues such as your age, race, medical/disability, etc.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17406
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
Marsha411JD and 7 other Employment Law Specialists are ready to help you
Expert:  Marsha411JD replied 1 year ago.
Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the legal answer I provided to you on the 12th of May. The Site has been a little buggy lately so the Experts are not always getting replies or ratings that the customer thinks have gone through. In your case I received neither. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue if needed.

Thank you.
Customer: replied 1 year ago.

Hi Marsha,


 


What I found discordant is that when my former employer filled out the paperwork she listed my use of sick days as a "leave of absence", but made absolutely no documentation of the three months FMLA maternity leave I took. I feel like if she is going to insist on listing all absences that she should at least be consistent and note both or none.


 


Also, in my case the future employer did ask for "clarification" of the personal medical reason for which I was out. It sounds as if what you are saying is that I should just say I had a medical leave and no more is this correct? I am concerned that if I said that they legally cannot ask me the nature of my illness that they won't hire me. Thanks.

Expert:  Marsha411JD replied 1 year ago.
Thank you for your reply. I can't really say what her motivations were, but an employer is not allowed to use FMLA time off in any way to count against attendance. So, that is probably why your FMLA time was treated differently, since sick leave does count against attendance and FMLA doesn't.

I am a bit befuddled that a prospective employer ask you for clarification related to the personal medical reason. That is clearly a violation of employment laws. It is one thing for an employer that has already made an offer to request medical information for purposes of insurance and, in some cases, safety/health reasons. However, a prospective employer who has not made an offer cannot ask about medical issues at all unless the employee opens the door by bringing it up. So, not only did you not have to answer that question, but if you did not receive an offer, you can file a disability discrimination complaint with the State and the EEOC.
Customer: replied 1 year ago.

Thank you this if very helpful.

Expert:  Marsha411JD replied 1 year ago.
You're welcome and best of luck to you.

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