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I was terminated from my job on 6/18 for reasons of NOT mis…

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I was terminated from my...
I was terminated from my job on 6/18 for reasons of NOT mis conduct. I ran
out of FMLA leave due to kidney complications, and I now have a nephrostomy tube and will be going for surgery on 7/6 to remove an obstruction in my kidney.. My job did NOT send me paperwork concerning COBRA. I was not given a grace period either. My job told me that they don't deal with insurance stuff. Thet told me it was up to my insurance company to send me COBRA paperwork. I looked at the Department of Labor Website and it reads that I have 14 days to recieve papers from by job, and then 45-60 days to decide if I want to pay the premiums and do so. My job told me I was cut off from insurance the day of my termination, but I couldn't pay anything without knowing how much I owed. As it is I already paid out of pocked for scripts without active insurance, and I recieved two phone calls from the hospital as I am scheduled for pre-surgical testing tomorrow. Is this legal? And do I have legal recourse? I work(ed) in direct care and live on Long Island. Does firing someone due to a disability violate the Americans With Disabilities Act?
Submitted: 8 years ago.Category: Employment Law
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Answered in 11 hours by:
6/28/2010
Employment Lawyer: Attorney Wayne, Lawyer replied 8 years ago
Attorney Wayne
Category: Employment Law
Satisfied Customers: 1,506
Experience: Practicing Law Since 2000
Verified
Hello Customer. Thanks for contacting us.

What a horrible situation this is -- I clearly see it. Let answer each of your questions in turn, to be sure the points are all covered. Please remember that this is a publicly accessible legal information site, not a law office. While we are lawyers, we do not work confidentially under attorney-client privilege, as a law office would. So please do not reveal anything that is confidential here.

That said, here is some information in response to your queries:

(1) COBRA coverage depends on the number of employees at a particular company. The US Dept. of Labor notes: "Group health plans for employers with 20 or more employees on more than 50 percent of its typical business days in the previous calendar year are subject to COBRA. Both full and part-time employees are counted to determine whether a plan is subject to COBRA. Each part-time employee counts as a fraction of an employee, with the fraction equal to the number of hours that the part-time employee worked divided by the hours an employee must work to be considered full time." This means that unless your employer has enough people on the plan, there is no COBRA requirement.

If you have not already seen it, here's a link to a fact sheet produced by the US Dept. of Labor: http://www.dol.gov/ebsa/faqs/faq_consumer_cobra.html

If your employer has 2-19 employees, then New York State's "mini-COBRA" law covers you. The difference is where you complain about problems: if the health plan covers more than 20 people - its a federal issue. If fewer than 20 people, complaints go to the NYS Insurance Dept. You can contact the Insurance Department's Consumer Services Bureau at (212) 480-6400 or 1-800-342-3736.

(2) Before making a complaint, I would send a certified letter, return receipt requested both to the employer and the insurance company providing coverage. State that you wish to exercise your rights either to COBRA under federal law or Mini-COBRA under New York State law. Also mention that you have not received the legally required notice, so this letter is being sent to ensure continuation of coverage. BE SURE TO KEEP A COPY OF BOTH THE LETTER AND THE RETURN RECEIPT AND POST OFFICE RECEIPT SHOWING MAILING, as evidence in case there continue to be problems.

(3) If you continue to get a run around, you can complain in one of two places.
If under Federal COBRA (for insurance plans covering 20 or more employees), contact:

Office of Program Services
Pension & Welfare Benefits Administration
U. S. Department of Labor
200 Constitution Ave., N. W.
Washington, D. C. 20210

1-866-444-EBSA (3272)

 

For smaller groups governed by New York State's Mini-COBRA law, telephone

(212) 480-6400 or 1-800-342-3736.

 

Here is a link with further information:

http://www.ins.state.ny.us/faqs/faqs_cobra.htm


You may also want to consult a lawyer. If you are in the NYC area, there is a free legal service for initial consultations sponsored by the NYC Bar Association. Here are details: "Monday Night Law Clinic: This free clinic runs from October through July. It is scheduled on specific nights throughout each month. At the clinic, attorneys will meet with clients for one-half hour appointments to discuss a variety of legal topics, such as bankruptcy, consumer issues, matrimonial, basic employment and landlord-tenant. There is no charge for this service. A client must schedule an appointment for the Monday Night Clinic through the LRS hotline (212) 626-7373 (English), (212) 626-7374 (Spanish). Walk-ins are not permitted."

You can find out more information about this and other programs at:
http://www.abcny.org/LRS/ActivitiesandServices.htm

(4) Americans with Disabilities Act: This law only requires that an employer make "reasonable accommodations" to allow someone to work. Thus, allowing someone to wear eyeglasses in order to correct vision in order to drive a cab, or supply an orthopedic computer work station. If someone can't do the job with reasonable accommodations, then the employer has no obligation to accommodate under this law. So if you can't work at all, and your FMLA leave is depleted, the employer can terminate. However, if you are disabled, and the employer had a disability insurance plan for employers, you may qualify. You may also qualify for Social Security disability benefits.

I wish you speedy healing and even speedier resolution of this issues. I know that hassles like this should not happen when you are suffering health issues. It is unfortunate they do.

Sincerely,
Attorney Wayne

PS Please click "ACCEPT." Experts only get paid if you click accept. Also, feedback is really helpful and the form is really short. Thanks for completin
g it.

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Customer reply replied 8 years ago
My employer has more than 50 employees, and has COBRA coverage, but aren't I entitled to a 30 day grace period (paid by my employer) before I have to pay out-of-pocket for COBRA? My Director VERY QUICKLY mailed me a termination letter, and in it, it stated that Benefits would be sending me COBRA paperwork. Yet when I called Benefits, they told me that they don't handle that, my insurance company does. I faxed her a copy of my termination letter to verify my employee status. She said on 6/23 my insurance company mailed out COBRA paperwork. When I looked at the DOL site, it stated that your employer's benefits administrator, BY LAW, is supposed to send the initial COBRA paperwork and explain the law, and then your insurance plan administrator is supposed to send further paperwork. I'm terrified that I won't be covered and I will die of kidney complications. Am I stupid, or does my job just THINK I'm stupid?
Customer reply replied 8 years ago
I recieved paperwork from COBRA but I never recieved anything from my job initially explaining my rights to COBRA and the law. Isn't this my employer's responsibility to offer me COBRA startup paperwork? Can I file a complaint against my employer?
Employment Lawyer: Attorney Wayne, Lawyer replied 8 years ago
The federal regulations only require the health plan to provide the notice (please note again that federal law governs health plans with 20 or more participants). If the health plan provided that notice, then there is nothing to complain of. Remember COBRA governs health plans. Depending on who controls the plan (an insurance company or, if a large company, perhaps the company itself through self-insurance), the responsibility will be different.

You can see a summary of these requirements at http://www.dol.gov/ebsa/publications/cobraemployer.html

You can, of course, file a complaint and let the agency sort it out. But the most important thing is to get your COBRA or mini-COBRA signup forms in on time and get the coverage properly in place now that you have been laid off.

I again wish you speedy healing and even speedier resolution of this issue.

Sincerely,
Attorney Wayne

PS Please click "ACCEPT." Experts only get paid if you click accept. Also, feedback is really helpful and the form is really short. Thanks for completin
g it.


Edited by Attorney Wayne on 6/30/2010 at 7:45 PM EST
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