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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11055
Experience:  Significant experience in all areas of employment law.
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My husband is 63. He works hours for this company. Saturday

Customer Question

My husband is 63. He works long hours for this company. Saturday he turned in 132 hrs for a 2 week pay period. He never calls in or late for work. He has been with this company almost 4 yrs. During the 4 yrs he has left work 3 times to go to urgent care, emergency eye doctor and the ER. The ER visit was last week and he was going to urgent care. The shop manager who is the bosses, Son-In-Law is taking him to urgent care. The Son-in-law calls their boss and he says to take him to the ER. I call before he arrives as the ER and ask them to go to urgent care because of high insurance deductibles. Today the boss calls my husband into the office a states that if he has to go to the ER or urgent care again while working he will be terminated. Is this lawful?
Submitted: 15 days ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 15 days ago.

Hello and welcome. I am very sorry to hear about your husband's situation. Can you please tell me how many employees this company has? I very much look forward to helping you on this matter.

Customer: replied 15 days ago.
It is a small company. There are about 21-22 where he works.
Expert:  Patrick, Esq. replied 15 days ago.

Thank you. And what is the specific medical condition for which he has had to go to urgent care? Is it a particular disability of some kind?

Customer: replied 15 days ago.
No, last week it was to the er. They work on concrete and he had shin splints. My daughter is an ER nurse and told him to go to urgent care. Urgent care was for dehydration, which was a few years ago. And the eye emergency was to much pressure in his eye.
Expert:  Patrick, Esq. replied 15 days ago.

Thank you again.

There are two main statutory protections for employees who miss work for medical reasons. The first is the Family Medical Leave Act, which permits qualifying employees to take up to 12 weeks of protected leave for "serious health conditions." However, the FMLA only applies to employers with 50 employees or more, so it would not apply to your husband's employer and he would not be eligible for protection under this law.

The second potential protection is the Americans With Disabilities Act, which requires employers to "reasonably accommodate" employees with disabilities, which in some cases can mean allowing a disabled employee to take time off work to deal with their medical condition. The problem here is that your husband does not appear to have missed work due to a medical "disability."

Unfortunately, this means that there may be no legal protection for an individual in your husband's circumstance. It would be tremendously unfair to let him go because he missed work for a medical reason, but the law does not prohibit employers from being unfair. A cause of action for wrongful termination only arises if an actual law is broken, and unless the FMLA applies or the employee has a disability, no law is broken if an employee is terminated for seeking medical treatment, as crazy as that sounds.

Perhaps your husband can at least argue that his most recent absence was for an eye condition that rises to the level of a disability (a medical condition which "significantly impairs a major life function") and that he is entitled to reasonable accommodations under the ADA. If he puts this in writing to his employer, that will certainly give them some pause before letting him go, simply because they know they will likely need to deal with litigation. That would really be the only option here. It's imperfect, but unless it can be argued that your husband missed work for a disability he has no protection under the law.

If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....

Customer: replied 15 days ago.
Thank You and have a great night.
Expert:  Patrick, Esq. replied 15 days ago.

I'm very glad I could help. Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service (using the stars at the top of the page) so that I may receive credit for assisting you.

Very best wishes to you and your husband.

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