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John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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I have been on medical leave since August 2012 due to complications

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I have been on medical leave since August 2012 due to complications resulting from a mastectomy from March of 2012. I signed a FLMA in August (well later when I could) effective of the date I was in the hospital for this. The FLMA ran out in October of 2012. My employer did not contact me to covert my insurance to Cobra when applicable. Since I am unable to return to work yet, and will be facing further surgery to replace my expander with a permanent implant, I have been asked to resign effective May 31, 2013. They will not seek payment of my health insurance that they have paid and have offered to pay my cobra for another year. The original documents received were using my nickname and not my legal name. I've requested documents in my legal name. They have stated I under all the age, handicap, etc. laws I can not seek legal suit. What are my options?
Submitted: 1 year ago.
Category: Employment Law
Expert:  John replied 1 year ago.

Hi, thanks for submitting your question today, and I’m sorry to hear about your medical issues and employment matter. I think your best bet in this situation would be to apply for social security disability and/or any other private disability insurance to which you have access.

Because you have long exhausted your FMLA leave, the only plausible claim you could bring is a disability claim. The problem with your bringing a disability claim is that you’d have to be able to work with or without a reasonable accommodation in order to be able to bring such a charge. You, however, are claiming you plainly cannot work, which is understandable, but you are not covered by the law. Further, the fact that documents were filled out or sent to you using your nickname has no bearing on your qualification or a violation of notice requirements; this is perfectly legal under the FMLA regulations.

The employer has apparently left you on its insurance long after it was legally required to and now promises to keep you for another year at no cost. Note – because you did not return to work the FMLA would allow them to collect all insurance payment made on your behalf since the time of your leave. In exchange for this they want you to release all claims against them, which is pretty much standard practice. You could ask for more severance or benefits, but, as I stated before, I don’t see much threat in you suing them, so you do not appear to have a whole lot of bargaining power against the employer in that regard. So you should seriously consider the offer you have on the table. If you reject the settlement you risk losing health coverage and risk the employer demanding the past-paid premiums.

You may also want to consider contacting a social security disability attorney. Persons who are not able, or projected to be able, to work for a year or more qualify for disability income; after 2 years of disability they get Medicare coverage. It sounds like you’ll be out at least a year here so you may qualify for payment all the way back to 8/12. There insurance, if necessary, can cover you until the point you can qualify for Medicare.

Unfortunately, that’s the best I can offer you as far as options for yourself; the laws just do not offer you very many options in this scenario. I believe it is best to be forthright in my analysis of an issue, rather than give overly-optimistic forecasts, so you the customer can best decide how to proceed.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – select the Reply to Expert or Continue Conversation button. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 2980
Experience: Exclusively practice labor and employment law.
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