Employment Law Questions? Ask an Employment Lawyer.
Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.
I have a few questions that will help me better assist you today.
How long was his medial leave of absence? More than 12 weeks?
Does his collective bargaining agreement with the union (assuming he is union) outline how long one may take a protected medical leave of absence?
Have there been others, younger in age, who took similar leaves of absence and were permitted to return?
Ok. In employment law, a person may take up to 12 weeks in a year of protected medical leave under the FMLA act. Now, that right is not absolute. If there are other legitimate reasons that a person may be let go, the taking of FMLA doesn't protect their employment.
I asked about younger people taking similar leaves and being kept, because if the employer claims some sort of legitimate business reason, he could point at younger people being kept and allege age discrimination.
However, he has every right at this point to pursue an FMLA discrimination claim with the Department of Labor. The timing of his release leads one to believe that his leave has everything to do with the termination. The employer would then have to demonstrate some other legitimate reason for his release, particularly one that preceded his taking of this MLOA.
He should contact the Department of Labor immediately.
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Unfortunately, that may be a legitimate business need.
There are times where I've sued for FMLA discrimination, but the employer demonstrated that they already had plans to lay off a unit and that person just happened to be in a unit that was being laid off. In those instances, FMLA does nothing to protect ones job. The taking of the leave is not the cause of the termination, but just incidental to it. In those cases, FMLA doesn't create any immunity or insulation against regular business decisions which are not motivated by discrimination against the use of the leave.
If they are not offering retirement packages to everyone else, it is very difficult for him to claim that the only reason he isn't being offered one is his use of leave. If others from this same unit are being offered a retirement package, he can certainly allege being singled out based on his leave use.
Giving a retirement package though is not a legal requirement under any federal or state law. That is an employer option that isn't mandated on them by law.
I too think it is odd that HR doesn't know about his insurance. At worst, he is presently covered under COBRA, which is the transitional insurance you can purchase. You may not receive notice of it for a few weeks, but legally the coverage is back dated.
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