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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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i have been off work sick with atypical pneumonia and pleurisy

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i have been off work sick with atypical pneumonia and pleurisy since April 18th 2013. I work 3 12hr night shifts per week. I have been under doctor care for this since that time and also have let my director and employee health be aware of when I can return to work,which was 5/20/13. I received a certified letter in the mail stating I was terminated as of 5/13/13. I was wondering if this was fair ,as I was to return to work the next monday.
Good afternoon and thank you for entrusting me to answer your question. I am so sorry to hear about your health problems and the fact you were recently let go.

You ask whether termination under such circumstances was "fair," but what I think you really mean to ask is whether it is legal. What is fair and what is legal often do not go hand-in-hand when it comes to employment law,and such is the case in the present instance.

Your employer's decision to terminate you after having been absent only this limited period of time and being scheduled to return on the 20th is extremely unfair. However, employment in the state of Florida is "at will" absent an express agreement to the contrary, and as such, can be terminated for any non-discriminatory reason that does not expressly run afoul of the law.

The protection that would ordinarily apply here is FMLA. Termination of an employee on qualifying FMLA leave would be a circumstance in which termination "expressly runs afoul of the law" and as such would give rise to a claim for wrongful discharge.

However, since you state you are not eligible for FMLA, the doctrine of "at will" employment otherwise controls. There is only one other conceivable basis to argue that your termination was unlawful. Specifically, if you can argue that your health condition qualified as a "disability" then your employer's failure to accommodate your condition by permitting you to take necessary time off may constitute a violation of the Americans With Disabilities Act and give rise to a claim for discrimination.

The problem with asserting an ADA claim is that the standard for proving a "disability" is much higher than the standard of proving you have a "serious health condition," which is the standard for obtaining FMLA. A "disability" is a condition which "significantly impairs a major life function." Though there is no requirement that the condition be permanent, the duration of the illness is a factor that courts will consider in determining whether a physical condition satisfies this definition.

If you could prove that your condition was chronic and you suffered frequent bouts of pneumonia and pleurisy, then perhaps your condition constitutes a disability which would give rise to the protections I mentioned above. Otherwise, however, it would be difficult to argue that your condition is a disability and, thus, that your employer had any obligation to hold your position to accommodate your condition.

If you wanted to file a claim for violation of the ADA, which would be your sole recourse under the circumstances, you can do so by submitting a complaint to the EEOC here:

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver what you may regard as bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
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