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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 38343
Experience:  I provide employment and discrimination law advice in my own practice.
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I am a Emergency room RN and was in an automobile accident

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I am a Emergency room RN and was in an automobile accident since I was unable to lift the required 50lbs for the job, I applied and received fmla (January 9). The fmla ended April 9th and I was told at that time I was extended for an extra 90 day medical leave. I applied for other nursing jobs within the hospital where physical demands were less but didn't get an interview. I was told by one of my bosses that I was a liability to the company with my injury. So on May 28th I gave my 2 week notice which ended June 11th since I found a job that didn't require lifting but was 7 dollars an hour less. However, on June 7th I received notification that my insurance had ended on May 28th and my 401k plan stated my termination day was May 15th. I called HR and asked why my termination day was showing up May 15th when it should have be June 11th. I was told by HR that it didn't matter if the termination was involuntary or voluntary and for 25 cents I could pay to get my employment record. I called my boss the next more and ask him if I was terminated on May 15 and he said no he stated he did not put a status change in until I gave my notice on the 28th. So I went to HR thinking they just made a mistake. However, right there in my employment file was a involuntary termination on May 15th for estinguished leave of absence, signed by my boss. I asked HR why I was never notified I was terminated and I was suppose to be on a medical leave so didn't think I could be terminated. The lady that I was talking to was the one in charge of fmla and she said she could not answer my questions at that time and she was confused as well. I asked for a copy of my extended medical leave which they cant find. I know I found another job but I ideally would like to go back to working in the hospital if my body heals and don't want a termination on my record. One question is can they do this, do you have to be notified if terminated? I could have received unemployment possibly right? My next question I didn't think they could fire you while on medical leave and what happens if they can't find the paperwork does that mean you don't have a complaint? Just so you know I never was written up prior to this and I worked for the company 5 years.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to respond to each question in order listed.

One question is can they do this, do you have to be notified if terminated?
An employer can make a decision to terminate you in confidence and the employer does have to inform you immediately. But until and if you are notified or otherwise placed on notice, their decision is not yet binding. You have to be told you are terminated for it to be a valid termination.

I could have received unemployment possibly right?
No, I am sorry. This is termination for overstaying your leave, which is technically abandonment of the employment and that would make it 'for-cause'. "For cause" termination does not entitle individuals for unemployment unless their employer agrees to not contest their petition.

My next question I didn't think they could fire you while on medical leave and what happens if they can't find the paperwork does that mean you don't have a complaint?
That is not quite true. A person cannot be fired on lease for the medical reason of being on leave, or for being on leave in the first place, but an employee can still be terminated. For example if while on leave their supervisor finds out tat the employee embezzled money, the employer can terminate for cause, specifically for embezzlement. If they cannot find the paperwork that actually makes it harder for you to prove you were on leave, as it then becomes your responsibility to find that information--then if you can find you can argue that the termination was wrongful.

Hope that helps.

Customer: replied 1 year ago.


So if I have to be told I'm terminated for it to be valid, how can they use that termination date if I was never informed I was terminated.


 

Expert:  Dimitry K., Esq. replied 1 year ago.
That is a good question. If I may ask, was your leave paid or unpaid?
Customer: replied 1 year ago.


unpaid after the first two weeks. Also, I have to prove I had an extention is that what you are saying. It seems pretty convenient for an employer to loose the paperwork if they aren't suppose to fire you while on medical leave. The reason on my termination form was estinguished leave of absence I know they can fire you for other reason but not for being out on leave which seems to be the case in this situation.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

Then I agree with you, if you have proof of this extension, then this potentially becomes 'wrongful termination' based on your impairment for which you were out on medical leave. I would suggest that you contact the EEOC in your locale and file a grievance. If they agree that this termination potentially violated the law, they will grant you a 'right to sue' letter that would permit you to retain counsel and sue for damages. It is unlikely they will agree to take you back (although it is possible), but you can potentially attempt to seek direct recourse for your losses.

Good luck.

Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 38343
Experience: I provide employment and discrimination law advice in my own practice.
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