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Tina
Tina, Lawyer
Category: Legal
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Experience:  JD, BBA Over 25 years legal and business experience.
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I have an employment question. I have been employed at this

Customer Question

I have an employment question. I have been employed at this medical center for 7 years, I am an RN. I have worked since I was 14, always had good reviews! (I am now 53 years old). Anyway, I've had a couple of serious illnesses last year and this year. My supervisor, Alice, was amazing last year (2014) when I was hospitalized both in February and November with very serious medical problems. Each time I was hospitalized (in our hospital) for close to a week, and then off work for an additional couple of weeks for recuperation. Alice stopped by to visit almost every day, inquire how I was doing, etc. She was amazing, and it really helped. Anyway, Alice retired earlier this year because she had cancer, and Angela, previously the "second in command" became nursing director of the ER. Angela was trying to "catch up" with Alice's reviews, which Alice wasn't really timely with. This past September, 2015, Angela gave me my employee review. It was all fine, except Angela told me that she needed me to sign a verbal warning about my call ins last year (2014). I had called in sick several times both in February and November, 2014. Both of those months I had been hospitalized, repeatedly, with "idiopathic anaphylaxis". These were very serious illnesses--I had anaphylactic shock, with no known cause. Anyway, Angela said this was routine, that HR sends the director reports of absences, and I needed to sign the verbal warning, just routine. So I signed it.
This year I called in sick a few times--once in February because the road was closed, due to snow, once in April, I can't remember why, and then a third time in April, I went to work, and got hurt lifting a patient, and had to go home early. After that I didn't call in in May, June, July,, August, September, or October. In November I was in a car crash, and my neck was hurt, so I called in on November 15. (I did go to acute care, so there is a medical record of this real injury). Then on November 21, I went to acute care and was diagnosed with pneumonia. Given antibiotics, so I called in both November 21 and 22. On November 25 I went to (my own ER), and was admitted with pneumonia, bilateral pneumonitis, respiratory failure, congestive heart failure, and hypoxia. I was inpatient for 5 days, almost died. I was very, very sick. I was discharged, still sick, on November 30, and had my doctor follow up appt on December 9. On December 2 I got an email from Angela, saying I had a written warning for absenteeism, and she would put it in my locker. I saw my doctor on Dec 9, and when I got home, there was a thick packet in the mail from work, with my "requested" short term disability paperwork. I hadn't requested STD, so I called Angela. She said since I was so sick, employee health said I had to request STD, since I was off work for 3 or more days. She asked if I would be back to work last weekend, I said yes. Had my Dr send a release. I worked Saturday, oh my goodness it was really rough, but Sunday I didn't last 2 hours, had to leave. Angela called me yesterday, Wednesday, said she needed to see me about my weekend package. I went in, she fired me. "Terminated" me from my weekend package. Due to absenteeism. At the same time, offered me an open position in the ER, very part time, 12 hour nights. I am to call her tomorrow with my decision, whether I will take the job or not.
My STD paperwork is still at my doctor's office. It said that I am not eligible for FMLA protected leave, so once they get the paperwork, it is up to HR and Angela to decide whether or not to grant the leave.
Is it legal for them to fire me for "absenteeism". when I was actually sick, and in their own hospital?
Why would they fire me for absenteeism, and then offer me a job in the same department?
I have short term and long term disability insurance through this employer. If they believe I am not able to work, due to illness (Absenteeism), shouldn't they be counseling me about my long term disability insurance? (I pay for this through this employer).
Submitted: 11 months ago.
Category: Legal
Customer: replied 11 months ago.
I forgot to mention. I have short term disability and long term disability--which I pay for--through this employer. Shouldn't they have counseled me about this option?
Expert:  faye Lee replied 11 months ago.

I know this a difficult time for you to have a problem with your work and with your job makes it worst. Have you read the hospital Employees' Handbook as it applies to time off from work? It appears you should have applied for Family Medical Leave earlier in the process to cover your time off. If you have not met the qualifications to be covered under Family Medical Leave then you will not qualify under the Family Medical Leave Act. If your hospital policy grants a number of days off within a 12 month period and you have exceeded those days then yes you may be terminated for being sick. If you qualify for short term medical leave / STD and return to your job then your job would be held until you exceeded short term and LTD.

From what you stated it appears you are not eligible for FMLA. An employee is granted time off days by policy and once exceeded then other action may be taken as long as they are not treating you differently as other employees because of any protective class like age, race etc. Your job is a position that can be classified as a necessity position which presents difficulty for the employer to replace. Since you are speaking to manager on Friday then you may want to request that your STD be reviewed prior to you being force to make decision. Also get copy of your company policy, visit your Human Resources Manager before finalizing your decision. Yes you should have had some options to help protect your job and time away from your job.You should ask why this offer is being made before you are approved for STD. This should not be a performance issue whereby you are written up. Your employer realizes they may have some liability if you are directly terminated therefore they are changing you to parttime by stating you are not there to perform your job duties.. If you refuse the position they will state you resigned. I would suggest you accept the position until you can address your issues to the Human Resources Manager and it would not show you resigned. I hope this has helped and please take of yourself.... warm wishes

Customer: replied 11 months ago.
Mr Lee,
I continue this conversation with the understanding that there is no further charge.
I called my supervisor, Angela, today, and told her that before I accept the 36 hour part time position, I had a few questions for her. First, I asked her to help me understand the definition of absenteeism. I was correct in my understanding. Say I am scheduled this week Monday, Wednesday, and Friday. I have the flu, and call in sick all 3 days. This is considered 1 absent time, as they are all scheduled days in a row, and with the same illness. I also asked Angela if she is posting the weekend position, or eliminating it. She said it is being eliminated. I asked if my benefits would be changed at all, going from the 40 hour weekender position to a 36 hour position, she wasn't sure, said I should ask HR about that. I asked if my medical leave was approved, she said she didn't know, to ask HR about that. I told her I was accepting the 36 hr night position, she told me that HR had already given her the "transfer form", she would put it in my locker for me to sign and give back to her. I asked her when this job change would be effective, and she said that HR doesn't like changed to be made in the middle of pay periods, so it would be effective the next pay period, which starts on December 27. So I asked her what do I do this weekend? I am scheduled to work, in my previous weekend position, Saturday and Sunday, 12pm-12am both days. Since I am fired, do I not work, or do I come in and work as scheduled in my weekend position. She told me to come in and work in my weekend position both days, also next Saturday, the 26th, as I am scheduled 3pm-3am. Then the next pay period starts December 27, so that day will be the start of my new schedule.
So I am not terminated, but "transferring" from 1 job to another. I was fired Wednesday, not starting my new job until December 27, but still going in tomorrow, Dec 19, 20, and the 26th "in my old job."
I also asked if my medical leave was granted, and both employee health, HR, and Angela didn't know the answer to that question. HR did say that "it must have been approved", otherwise I wouldn't be back to work.
The absentee policy says that any consecutive days with the same illness are counted as 1 count of being absent. It sounds like my request for leave was granted, so the absences would all be under 1 leave anyway. So I did not have a problem with "absenteeism" this past year. I have read that it is not legal to fire someone during or just after a medical leave. Is this correct? When someone is on leave, when they come back, they have to get the same pay and hours, etc. Is this correct.?
I honestly can't figure out why they handled this whole situation the way they did this week. Is it simply because they want to get rid of the weekend position, and just have me as a regular employee?
Expert:  faye Lee replied 11 months ago.

I would think from your facts you should have been placed on FMLA if you were eligible by work time. If you were eligible you would have been able to take up to 12 weeks off and your job as well as your pay would be saved. If you exceeded 12 weeks then your job may not be saved. It is illegal to terminate an employee protected under an approved disability and this would include a serious health issue. If you have a temporary permanent disability then you may request to be accommodated under American with Disability Act. I feel the H/R person is attempting to accommodate you under ADA. I don't know how long you were off nor if you have a disability. I hope this has help, but if you need further help,please contact me..... I hope you get better soon !!!