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Ray
Ray, Employment lawyer
Category: Employment Law
Satisfied Customers: 37061
Experience:  30 years in Employment law
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I'm stuck between a rock and a hard place and I hope you can help me. I have been off

Customer Question

I'm stuck between a rock and a hard place and I hope you can help me. I have been off of work for 7 weeks due to a toe amputation. Got a call from HR on Tuesday telling me that they need to protect the business and they need to remove me from my director position as they need someone who is able to make it into work. It's a non-profit in case rules and regulations are different
Submitted: 7 months ago.
Category: Employment Law
Expert:  Ray replied 7 months ago.
Hi and welcome to JA. Ray here to help you today. You ask that the court continue any ruling on the case including default until the other prior cases are disposed of because they are sequential and D is the last of these and should be decided last.This is a very reasonable and sequential argument, you need to show that there is not harm to other party thats unreasonable from the delayed ruling.If you can do that the judge should agree with your verbal motion and request here. You can do this as a motion for indefinite continuance asking the court to delay ruling until the other cases are decided and that there is good cause to delay the matter.
Expert:  Ray replied 7 months ago.
Please disregard this it was posted in error.Another expert will pick this up.Please do not respond and do not rate, thanks.
Customer: replied 7 months ago.
Thanks
Expert:  Ray replied 7 months ago.
Now that I have a moment can I please try to help you here.I appreciate your patience. Are you able to qualify for FMLA here, or are you on FMLA or other medical leave?Were you injured on the job?Thanks.
Expert:  Ray replied 7 months ago.
FMLA as an option you could request this from employer if you have not done so. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:Twelve workweeks of leave in a 12-month period for:the birth of a child and to care for the newborn child within one year of birth;the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;to care for the employee’s spouse, child, or parent who has a serious health condition;a serious health condition that makes the employee unable to perform the essential functions of his or her job;any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” orTwenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
Expert:  Ray replied 7 months ago.
I would try FMLA as a first step ask HR about that as a lesser option here that termination.
Customer: replied 7 months ago.
Ray, I'm on a leave of absence
Customer: replied 7 months ago.
I was not injured on the job
Expert:  Ray replied 7 months ago.
So ask your hr or boss about FMLA here, thats 12 weeks of unpaid leave.Make a formal request and see if they approve or deny.
Expert:  Ray replied 7 months ago.
I am also pretty sure you might get SSDI here as well.You are unable to work suffered permanent injury, loss of toe here.Thats a good next step.
Expert:  Ray replied 7 months ago.
FMLA form you need to submit https://www.dol.gov/whd/forms/wh-380-e.pdf
Expert:  Ray replied 7 months ago.
SSDI refers to the Social Security Disability Insurance program. It is tied to the Social Security retirement program, but is for workers who become disabled before retirement age. Only workers who have worked and paid Social Security taxes for many years are insured by the SSDI program. If they terminate file for SSDIhttps://www.ssa.gov/disability/
Expert:  Ray replied 7 months ago.
You should make a request for reasonable accommodation here,, work at home, modification of work space/duties, etc. Here is more on that..I would submit this today.https://askjan.org/EeGuide/EeGuide.pdf This would then allow you to file a complaint with DOl on any failure to accommodate here.
Customer: replied 7 months ago.
Ray, being a non profit we do not do FLMA. I don't want to collect any government assistance. I wish to know if they have the right to remove me from a position after 7 weeks of leave of absence?
Expert:  Ray replied 7 months ago.
SSDI amputation. http://www.disability-benefits-help.org/disabling-conditions/amputation-and-social-security-disability
Expert:  Ray replied 7 months ago.
If your nonprofit has 50 or more employees within a 75 mile radius, the FMLA applies to your organization. You count all "bodies" - full- and part-time. The regulations now clarify that you must also count employees who telecommute and workers from a temporary agency. If you have fewer than 50 employees, FMLA does not apply to your organization.On the employee side of the equation, the employee must have worked for you for 12 months (over the past seven years) and worked at least 1,250 hours during the preceding 12-month period. If the employee has not worked for you for 12 months at the start of a medical leave, the 12-month clock keeps ticking during the time the employee is out on an approved leave.- See more at: http://www.blueavocado.org/content/wading-through-new-family-and-medical-leave-act-regulations#sthash.ObgZ7fwd.dpuf
Expert:  Ray replied 7 months ago.
And they can terminate you as an employee at will unless you can claim you made request for reasonable accommodation here and were denied or denied FMLA leave if the non profit falls under the 50 employee rule.Employment at will is tough here and I know they are not being very fair about your situation.Trying to give you some ideas.
Expert:  Ray replied 7 months ago.
And don't disdain SSDI here.It would pay you until you are able to go back to work.
Customer: replied 7 months ago.
Less than 50 people no FLMA coverage. Using my Paid Time Off and my short term disability from an outside company to get paid for my time off
Expert:  Ray replied 7 months ago.
This would help you short term with asking for reasonable accommodation and if you think your employer has 50 people FMLA request..https://www.eeoc.gov/policy/docs/accommodation.html I would commit this to email asking employer for such accommodation and also unpaid leave in lieu of termination.Stress the financial hardship to you and your love of your position and desire to retain it when you are able to return--you can also add in the request for reasonable accommodations.
Expert:  Ray replied 7 months ago.
If they terminate you here after posturing with your request you are looking at SSDI because until you are well you cannot file for UI benefits here.SSDI pays until you are able to work.It also would give you financial breathing room.Any chance they would pay you severance--include that as a last resort.
Expert:  Ray replied 7 months ago.
Just trying to be creative in a very difficult time for you here.I know it is frustrating for you.
Expert:  Ray replied 7 months ago.
I sure would get the email off to them today asking for accommodations and unpaid leave extension here.Make them turn it down.
Expert:  Ray replied 7 months ago.
Thats the best you can do and they might back off for awhile to see if you are able to return to job here. I wish you the best.I will say a little prayer for you here.
Expert:  Ray replied 7 months ago.
When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation."(19) Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation. something like this, also one for handicapped parking.
Expert:  Ray replied 7 months ago.
An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The ADA does not preclude an employee with a disability from requesting a reasonable accommodation because s/he did not ask for one when applying for a job or after receiving a job offer. Rather, an individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment.(23) As a practical matter, it may be in an employee's interest to request a reasonable accommodation before performance suffers or conduct problems occur.
Expert:  Ray replied 7 months ago.
https://www.eeoc.gov/policy/docs/accommodation.html#requesting If you are turned down here you file EEOC complaint alleging discrimination here. https://www.eeoc.gov/employees/charge.cfm These are your options, if you are able to work with accommodation I would make such a request prior to termination and see what they say.If turned down then file with EEOC which then gives you a law suit for discrimination here.
Customer: replied 7 months ago.
Ray, I appreciate your time but you're are not getting the main question/concern here. But I appreciate your time. Bye
Expert:  Ray replied 7 months ago.
If you are asking of they can terminate you then yes you are an employee at will.But you can make a reasonable accommodation request, and an EEOc complaint if they turn it down.I am assuming you could work here with accommodations.Otherwise SSDI would be an option as well if you are terminated.You are able to sue for wrongful termination if you make such a request and get turned down and they terminate you.You need to posture here and make such a request before they move on as they are stating. Let me know if you have more follow up.Want to help you I know its frustrating.