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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18813
Experience:  Employment/Labor Law Litigation
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I fell on the job, and in 2015 the pain from nerve injury

Customer Question

Hello, I fell on the job, and in 2015 the pain from nerve injury caused me to miss work. I used all my pto and fmla seeing MDs and trying to get my injury resolved. Finally on Oct 23, 2015, HR told me "your manager is no longer willing to work with you. You need to leave and get fixed and return when you are able to work 40 hrs per week, 5 days per week. That was 8 months ago. Since that day, I was on short term disability, and then was denied by workers comp. Workers comp said they did not doubt I was injured, but that I could not prove the injury was caused by my fall at work.
After 8 months off work, I was called in to HR last week to have a meeting. HR told me that time had run out, and I needed to put in my resignation, since I would not be able to come back to work 40hrs per week. I told her I was not aware that I had the option to return to work. Since I had not heard from her. She said that I would have to work 40hrs per week and could not miss any work and be able to perform all the functions of my duties as a Radiation Therapist, or I would be immediately terminated. (since I have no pto or fmla accrued.)
Desperate to get my job position back, I told her that I never wanted to lose my job, but since I have been off work 8 months, I asked if I could start back slowly, and see if I could work myself back up to 8 hrs per day, to see if I could work. She said no. That it sounds to her that I need to resign, if I don't think I can start back at 40hrs per week. And she does not want me to try to come back to work, and then fail and be fired. She said that would tarnish my perfect record. She told me I should go back to school to find a different career.
So... My questions are:
Can HR force me to resign due to medical issues? She told me it would be best to resign, rather than be terminated. But if I resign, would I ever be able to received unemployment benefits later? Whether I resign, or am fired, I will still have a large gap in my employment history that will look bad to any prospective employer in the future.
I don't know what to do. My meeting with HR was on Thurs June 30th. She said I must see an MD and get a release back to full duty, or not. But I must call her by phone on Monday, July 11th, 2016, to give my resignation. I asked her if I could have another week to seek out my doctors advice, since with the holiday, that gives me only 4 days to seek an MD appt and most MD will not fill out the paperwork the day you request it. But she said that my employer had given me ample time to "get fixed" and now that workers comp had denied me, my employer no longer can hold my position for me.
Can you give me any recommendations on what I should or should not do. I just received papers in the mail today from Long Term Disablility insurance. I do not know if I will qualify for long term disability or not. I am single, live alone, and I have a mortgage and do not want to lose my home.
I went to college for 5 years to have a career as a Radiation Therapist, and graduated when I was 35yo. I am now 54yo. I have no desire to go back to school, or change careers. What are my options now? What is the best action, to resign or be terminated? If long term disability denies me, would I qualify for unemployment? After living off my savings for 8 months, it's almost gone. What's your advice? Are there any rights as an injured employee that I should know about?
Thank you for any advice you can offer me.
Nancy T
Radiation Therapist, BS RT(T)
Submitted: 5 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 5 months ago.

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.

Yes, if you have been out of work for that long, you can be terminated or asked to resign based on absences. Only 12 weeks of FMLA leave is permitted a year, so you have already exceeded that. Being injured on the job doesn't create job protection, which is why the FMLA law was passed in the first place.

On the issue of worker's compensation, you don't have to accept what their insurance company said. Sue them carrier with a local worker's compensation attorney. You'll likely get something out of that, if not full payment for the entire period.

It is better to make them terminate you. Your termination here wouldn't be based on misconduct, so you don't actually gain anything by resigning instead. Force them to terminate in order to keep the possibility of unemployment alive (though it is rapidly running out).

You can't qualify for unemployment unless you are ready, willing and able to work, and are actively seeking work. If you can't work, you'll have to file for SS disability.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

Customer: replied 5 months ago.
I did contact a workers comp attorney, and he agreed that there was no way to prove my nerve injury was caused by the fall at work.
I asked HR if they would deny unemployment benefits if I resigned. And they said no. But I thought you can only get unemployment if you get fired? Would it be worth asking HR to put it in writing, and resign instead of being fired?
Expert:  Allen M., Esq. replied 5 months ago.

If you have contacted an attorney and they don't feel you can prove the work connection, then yes that is a problem. You could still hire one (you can find one, I'm sure) willing to file to just get you into negotiations with WC and they'll often give at least something to have the case settled.

You can only get unemployment if you are terminated or you resigned for good cause. Their statement that they would not "deny" unemployment is misleading. An employer doesn't deny unemployment at all. The state does. The employer would be able to truthfully state that you resigned, make no effort to "deny" your unemployment, and the state would do so based on the evidence. In fact, the employer legally HAS to admit if you resign, because otherwise they'd be found to be engaged in collusion to commit fraud against the state. It is the state that determines your eligibility for unemployment, because it is their program.

I'm an employment law attorney that represents employers (or at least, I have in the past) and this is a very common ploy by employers, to say that they won't deny your unemployment and it's better for you to resign. It is an intentionally misleading statement.

Customer: replied 5 months ago.
I did seek a lawyer to challenge W/C. That was dealt with.Are you saying that no matter what HR says about me still being eligible for unemployment benefits if I resign, that it would still be best to refuse to quit and have them terminate me?
Expert:  Allen M., Esq. replied 5 months ago.

HR doesn't get to say that you are or are not eligible for benefits. That is not the question the state asks them.

The state will say to HR "under what circumstances did this person leave?" They must truthfully answer. "She resigned."

Now, in the arc of discussion, HR will not say "she shouldn't be eligible" so they are truthfully when they say that they won't say anything calling for you to be denied benefits. However, when they say "she resigned" the state will use that information as their basis for denying your benefits.

It is best for you to refuse to quit. Yes.

Expert:  Allen M., Esq. replied 5 months ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.