How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Legalease Your Own Question

Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 14511
Experience:  13 years experience in employment law, unions, contracts, workers comp law
20355756
Type Your Employment Law Question Here...
Legalease is online now
A new question is answered every 9 seconds

I have worked 30 years for a local government agency which

Resolved Question:

I have worked 30 years for a local government agency which has always allowed employees to use sick leave, vacation and comp time without adhering to the 12-week FMLA limit as long as the employee has time on the books (and other employees are allowed to donate time to those who run out of hours for a serious personal or family medical issue).
I had parenting leaves in 1998 and 2001 which referred to FMLA, but no specific FMLA paperwork was done. The agency is now claiming "no one has ever used FMLA", though our policies do state anything more than 3 days must be "approved by the department head". None of my co-workers have ever had to do the FMLA paperwork, including for parenting leaves while I've been on medical leave this year.
My question is going to relate to whether I have any protections with an extended medical leave under FMLA, Worker's Compensation, possibly ADA, and in view of past practice.
Last year I filed for Workers Compensation for treatment of long-term injury caused by prior injuries at work and aggravated by the duties of a position re-assignment. I am in the formal appeal process (with an attorney) for the Workers Compensation carrier's denial. I received a specific aggravating injury which compounded the problem last September (there was retaliation and disciplinary action associated with the re-injury, including repeated attempts to persuade me to retire). I could not wait for the W.C. appeal process to finish before it became necessary to have surgeries to repair the damage, as work and home functions were becoming impossible.
I gave 30 days notice with a plan for my time off which was approved by the intermediate supervisor and by the Department Head. It called for probable return to duty by mid-June. After approval, I confirmed the schedule for surgeries. I then received the FMLA forms. After I had the first surgery (no backing out now!) and had used Comp time off for the first 2 days, the Department Head sent me a notice that my FMLA was being altered to demand use of all sick leave hours before any others. When a grievance was explored through the Union, He had to allow my vacation hours to be used as they accrued since the new policy would have created a loss of workplace benefit (we have a cap on vacation hours, and I was maxed out for the leave). In this letter he also prohibited me from accessing our voice mail system, e-mail (including legal notices I must respond to), and doing any other work-related tasks. This has NEVER been done to other employees on leave.
In early June, when my doctor's report indicated I would need at least another month of healing, I was informed my leave protections had expired on April 11.
I had to obtain additional medical certification to stay on leave. I understand why, it was just done in a very adversarial manner and was difficult to meet the timeline demanded my treating Specialist is only in town 1 or 2 days per month).
As the hardware placed during the inital surgery was impinging on the joint and it was not healing, hardware was removed on August 2.
The employer has not offered any light duty, different position, accommodations other than extended leave (using vacation time). My surgeon has expressed frustration trying to get information from the employer with exactly what qualifications I need to meet to return to work-- they keep sending him the job description which doesn't really help. The Department Head just tells me my only option is to return to full duty at my assigned job. I recently applied through the Agency for our Long-Term Disability coverage, as I run out of paid time this week. I do not meet the "expected to continue for at least one year" for TFD or PPD disability through the State system. The City has not submitted my application to the insurance carrier.
I ws ordered in last week for a meeting with the Department Head and agency person designated for personnel matters to "determine ADA compliance"-- the Department Head had filled out a spread sheet indicating my inability to perform the vague job tasks listed in our job description based on my lifting limits, the meeting was a perfunctory sham at justifying terminating me. I repeatedly pointed out that we are still awaiting a Work Comp ruling (the City nor the carrier replied to the appeal or demand for immediate hearing, we're waiting to find out from MN DoL when the hearing will be held -supposed to be within 30 days). When I asked for continuation of leave as a reasonable accommodation, though it will be unpaid as of Thursday, the Department Head replied that I will no longer be an employee if I'm not being paid.

I am one of only two female employees out of 29 in the position, recently divorced (from another department member) and supporting two teenagers, of a different religion and viewpoints than my boss, and of borderline retirement age.
Any advice?
Does past practice come into play, especially as relates to extended leaves? Thanks.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Legalease replied 1 year ago.

Hello there

-

Can I ask you several specific questions?

-

1. Are you a union member? If so, are they assisting you at all on these issues?

-

2. Is there a company / agency policy stating what the length of time is that you may be out of work for any reason before being terminated? For example. some companies will use the strict 12 week FMLA limit and terminate the employee at the 13th week of being out of work (whether being paid workers comp or disability or not being paid at all)?

-

3. Finally, can you clarify what your overall legal question is here? You have given me a lot of really good details but I am uncertain what your ultimate question is -- Do you want to know if they can legally terminate you if you are out of work with a work related injury?

-

-

MARY

Customer: replied 1 year ago.

Our Union representative has not been able to do more than deal with the loss of vacation time issue, as other aspects of our Contract have not been violated.


There is no policy on length of leave before termination. When I took my parenting leaves, I used vacation & comp time to get those under certain thresholds, then about 3 months of sick leave, 5 weeks' unpaid leave that was counted as the only FMLA portion, then some vacation for a total of 5 months each time.


 


Overall: might the City's past practice of allowing employees to use leave up to its hour limits (and beyond with donated sick leave), not requiring use of FMLA forms even when leaves are for more than 3 days (family members and serious illnesses) and sudden change of policy in my case have any impact on an unlawful termination action?


 


Do you know whether termination would have an impact on retirement benefits (MN PERA Police & Fire Fund)? I understand retiring before my Worker's Comp appeal is completed terminates that action, and it's of significant $$ value. I'd rather return to work as soon as I'm healed.


 


I believe I would have adequate facts to show discrimination on several points, but really don't want to have to sue the City.

Expert:  Legalease replied 1 year ago.

Hello again Mari --

-

First, regarding the company right to terminate an employee who is out of work for any reason at all -- in the absence of a clear written policy regarding how long a company or agency must keep a job open for an absent employee, it is completely up to the employer when to terminate that employee and the employer can do it based upon a clear written policy (for example, my own husband worked in a union position for a private warehouse and the union and company negotiated a one year absence rule -- the company would hold the job open for one year for any employee who was out of work for any reason (whether hurt on the job or recovering from a debilitating illness -- it did not matter) and at the end of the year if the employee was unable to return to their old position, the company had the right to terminate the employee).

-

In the absence of a clear written policy set forth by the employer and/or a collective bargaining agreement where the policy for termination under these circumstances is agreed upon between the union and the company, then the company or agency must abide by federal employment law and the FMLA and if an employee requests a leave for any reason or must be out on a medical leave or is out on worker's compensation leave then the employee has up to 12 weeks of leave that can be taken unpaid to deal with these issues. At the end of the 12th week if the employee is unable to return to work then the company or agency has the right to either terminate the employee or to hold the job open if the employer chooses to do so (the employer can also offer a lesser job for lesser pay at the end of the 12 week period).

-

I have seen many different applications of the FMLA law and the ability of a company to terminate an employee either at the end of FMLA or at some other time of the employer's choosing and I can tell you that there is much confusion regarding all of this -- so it is probably easiest for me to set out the law/rules in a bullet point format as follows:

-

(A) FMLA is federal law applicable to companies or agencies employing more than 50 people (federal law) which provides up to 12 weeks unpaid leave for any purpose. Most states have adopted their own versions of FMLA and have made some minor changes (such as lowering the number of employees to 20 in many states) but for the most part, the federal version of the law is the one followed in every state (federal law overrides and overrules state law and the only thing that the states can do to change it is to make it stricter in applicability -- such as lowering the number of employees to 20 in many states -- the states cannot make the law any looser/easier (such as raising the number of employees to more than 50);

-

(B) The 12 weeks ends and then it is completely up to the employer whether or not the employer will terminate the employee or hold the job open or offer a lesser paying job to the employee. Whatever the employer decides to do is perfectly legal. An employer does not have to offer a part time position as an "accomodation" under the ADA to any employee seeking such a position at the end of the 12 week period either if the employer chooses not to do so (touching briefly on the ADA as it may be applicable here, the ADA requires an employer to make "reasonable" accomodations for a disabled employee to return to work or to continue to work for that company -- but a reasonable accomodation is not a change in work hours or work days - a reasonable accomodation is one where the employee may need a chair in order to sit through their shift rather than stand through the shift (such as a cashier who must sit down due to MS or another disability) -- while it may seem reasonable to you and I to make an employer change the schedule of the employee to accomodate a disability under the ADA, these issues have been litigated in both state and federal courts and employers have won on this issue -- the employer does not have to change workdays or hours or schedules as a reasonable accomodation under the ADA.

-

(C) Regarding sick, vacation and other accumulated time -- again, it is completely up to the employer whether or not to permit the employee to use such accumulated time as a means of having a paycheck while the employee is out on the FMLA leave. Some employers encourage it and some employers do not permit it -- but it is completely up to the employer.

-

(D) REgarding whether or not accumulated sick time can be taken separately from any FMLA leave (thus effectively giving the employee more than the 12 week FMLA leave during the same calendar year). Again -- this is up to the employer -- however, I have seen most employers limit all total leave to the 12 weeks per calendar year and so if you are out a week sick in February and then go out on FMLA in August, the employer can and does limit your next leave to only 11 weeks on the FMLA. The only employers I have seen who are generally more generous here are state and local government agencies and offices -- and this is what is sounds like your employer does -- they permit you to take your sick time in ADDITION to any FMLA time so that you can effectively receive more than the 12 weeks of FMLA time if you need to take it for any reason.

-

(E) Regarding FMLA and worker's compensation laws and the interaction between the two sets of laws. Many employees are under the mistaken belief that an employee injured on the job cannot be terminated. This is not the case at all. The company has the right to terminate a person collecting worker;s compensation after the same 12 week FMLA period as all other workers, thereby cutting off the employees right and access to their own job and any other job within the company or agency once their doctor clears them for return to work in any capacity. This is where it can get ugly for the employee -- if an employee is terminated while collecting worker;s compensation, the employer/insurer must still continue to pay the worker's compensation weekly payments until such time as the employee is medically cleared to return to work. Once the employee is medically cleared to return to work, if there is no job for the employee to return to then the employee can and will be cut off from the worker's compensation weekly payments and will have no option but to apply for state unemployment benefits at that time. These are the reasons why many lawyers will push settling worker;s compensation cases early so that the employee can beat the doctor and the company out of the opportunity to clear the employee to return to work at a job that no longer exists for that employee.

So, I hope that the information above helped to understand how FMLA works and how it interacts and dovetails with your sick and vacation time, the ADA accomodation laws and the worker's compensation laws.

-

-

Turning to your specific case, it sounds to me like the employer does NOT have a specific policy regarding at what point an employee can be terminated when they are out on FMLA leave (remember, the employer can choose to abide by the 12 weeks or the employer can keep the job open as long as they want). Under these circumstances, if your employer is not sticking to one specific clear policy regarding when the employee out on leave is to be terminated, then the employer is making a different decision in each specific case set before them and that decision can change from employee to employee to employee. By handling this issue in such a discretionary manner, your employer is probably setting itself up for charges of unlawful discrimination -- certain employees are protected against discrimination in the workplace due to their race, gender, age (over 40), disability, religion or sexual orientation and if the HR department or the supervisors who are making the decisions on who to terminate and who not to terminate because the employee is out on leave are either deliberately or subconsciously discriminating against the employee on leave for any one of these enumerated reasons and makes a decision to terminate an employee on leave because the employee is over 40 and close to retirement rather than for a completely unbiased across the board reason then the employer may end up getting into trouble.

-

-

In your situation, going out on workers compensation and/or being terminated will not affect your right to your pension (accumulation into the pension will stop from the time you stop contributing (upon termination) obviously -- but that is true everywhere). If your employer will not accomodate your medical issues and offer you a part time position or reduced hours, I am afraid that there is nothing you can do about that under the ADA (as I explained above). However, if you are then terminated because you cannot return to full time work and the employer chooses not to keep the job open for you, you might have a case of age discrimination if you are over 40 and nearing retirement and the employer has not firmly set policy on termination after FMLA leave -- you could file a complaint with the Equal Employment Opportunity Commission (EEOC) in your state and challenge your employers decision to terminate you IF you can show that the employer has held open jobs for younger employees in the past but then refused to hold your job open for you because of your age and status as being close to retirement. I am not saying the case would be a slam dunk -- but it would be worth the time to prepare and file a complaint with the EEOC if you can show instances where the employer had held the jobs open for younger employees well beyond the 12 week FMLA period and yet in your case, the employer decided to terminate you arbitrarily after XXXX weeks of being out of work and collecting worker;s compensation payments.

-

I hope that the legal summary herein and the examples that I have used clearly show you what actions you may or may not be able to take in the event you are terminated while out on worker's compensation injury.

-

MARY

-

Please press the 3rd, 4th or 5th smile face below so I will be paid for my time. I am paid NOTHING unless you press a positive rating below. Pressing the 3rd, 4th or 5th smile face below will NOT cost you any additional money -- it simply acts as the trigger to Just Answer to pay me for my time. THANK YOU !

Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 14511
Experience: 13 years experience in employment law, unions, contracts, workers comp law
Legalease and 4 other Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • I must thank you all for such a positive and knowledgeable Expert in your Employment Law category. She has provided much relief and answers for me in the midst of dealing with a case. I am totally pleased with her customer service and care. Mildred Washington, DC
< Last | Next >
  • I must thank you all for such a positive and knowledgeable Expert in your Employment Law category. She has provided much relief and answers for me in the midst of dealing with a case. I am totally pleased with her customer service and care. Mildred Washington, DC
  • Excellent direction from Socrateaser to help me preserve and pursue my rights as a proud American who has become unemployed in this messed-up economic downfall. Thank you Happy Customer Denver, CO
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    7759
    JD, BBA, recognized by ABA for excellence.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    7759
    JD, BBA, recognized by ABA for excellence.
  • http://ww2.justanswer.com/uploads/marshadjd/2009-6-1_194320_marshajd.jpg Marsha411JD's Avatar

    Marsha411JD

    Lawyer

    Satisfied Customers:

    10539
    Licensed Attorney with 27 yrs. exp in Employment Law
  • http://ww2.justanswer.com/uploads/NY/nyclawyer/2012-6-7_22011_photo66139201112041.64x64.jpg Infolawyer's Avatar

    Infolawyer

    Lawyer

    Satisfied Customers:

    9785
    Licensed attorney helping employers and employees.
  • http://ww2.justanswer.com/uploads/JA/jaccorpsesq/2011-11-13_21141_JAnewphoto.64x64.jpg Allen M., Esq.'s Avatar

    Allen M., Esq.

    Employment Lawyer

    Satisfied Customers:

    9429
    Employment/Labor Law Litigation
  • http://ww2.justanswer.com/uploads/MI/MILawyer/2011-2-28_0311_JBUprofile.64x64.jpg JB Umphrey's Avatar

    JB Umphrey

    Lawyer

    Satisfied Customers:

    6273
    Assisting employees and employers for over 14 years.
  • http://ww2.justanswer.com/uploads/TU/TUSA/2012-6-6_55219_test.64x64.png Thoreau (T-USA)'s Avatar

    Thoreau (T-USA)

    Lawyer

    Satisfied Customers:

    2469
    Attorney
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    2214
    I provide employment and discrimination law advice in my own practice.