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LawTalk, Attorney
Category: Employment Law
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Experience:  30+ years legal experience and I keep current in Employment Law through regular continuing education.
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I am a special education teacher. I was injured by a student

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I am a special education teacher. I was injured by a student on 6/23/2004. After a long time and fighting with worker's comp., I finally was able to get the surgury that I needed. After lots of therapy, it was deemed by a worker's comp. doctor to have a 15% total body permanent disabilitiy because I am right handed and still have problems with it. After several years, the pain got to be to much and I went back to worker's comp. (under the same employer), and tests showed that one of the two fusions in my hand did not take and that I needed another surgery. I had surgery on 12/27/2010 and I was out of work for 3 of my winter break weeks and then about 5 weeks of school that worker's comp. paid for most of it until I ran out of the allotted days off that they will pay for per injury. I was not told until after the fact that my district was using my own sick leave for about the last 8 days that I was off.

I went back to my dotor and he gave me a restriction of wear my right hand wrist brace and not to pick up anything over 10 pounds. The district allowed me to go back to my classroom and I taught for a couple of weeks when this last Monday I got a phone call around 9:30 in my classroom from the head of HR and was told that she was sending a sub to my classroom, she would be there in about 45 minutes and that I was to go home because I could not teach my class with the my injury. I told her that I was able to teach my class and she said that I may think that I am teaching my class, but I'm not really teaching my class, that my aides are teaching my class. Just after the phone call my principal came in and ansked why I wasn't teaching my class, I told her that I had just gotten off the phone with the head of HR and what did she know about it.

The principal ended up staying in my classroom for more than an hour until my sub got there and she witnessed that I was teaching my class the whole time that she was there. She then waited until I told the sub what the rest of the day would be like, then waited until I got all of my stuff together and then escorted me off campus.

Yesurday I went back to my doctor and he was happy with my progress and put my restricion at wearing my brace on my right hand. I called the HR department to make sure that they had gotten my doctor's fax. I asked them to give it to the head of HR so that I could see it I could go back to work today. i didn't hear anything for a couple of hours, so I called back again and was told that the head of HR had been in a meeting for a long time with HIPA (I think that is what they said). The head of HR finally got a hold of me saying not to go to work today and that they had been trying to get a hold of my doctor since 5pm and had not been able to contact him to ask him more questions. I did not give any of my doctors permission to talk to any of my docotrs. Isn't that against HIPA?

All I want to do is to go back to work and be with my students. I am perfectly able to do my job while wearing a brace on my right hand.

Thank you for any help,
Cindy Martin [email protected]
Submitted: 6 years ago.
Category: Employment Law
Expert:  LawTalk replied 6 years ago.
Good afternoon Cindy,

I'm sorry to hear of your dilemma.

As a general rule, yes, unless you have provided your employer with a written authorization allowing them to speak with your physician regarding your need to be out of work, your physician's discussion of your medical condition would be in violation of HIPAA regulations.

Employers do have the right to verify time off which might be afforded under the rules of the Family Medical Leave Act though. It may be through this method that they are seeking information.

While your employer or your employer's agent has a right to confirm with your physician the medical reasons for your need and us of leave under the FMLA, you are under no obligation to sign a general medical records release for either of them.


Under the FMLA, employers can request medical certification when employees request/or take leave. The employer should request only information available in the Department of Labor´s (DOL) Medical Certification Statement (Form WH-380), and its health care provider may contact the worker´s health care provider, with the employee´s permission, for clarification.


The DOL´s form limits the employer´s access to information from the health care provider to what is relevant to the employee´s current serious health condition. This may include the following items:


1. The medical facts that support the determination that the condition fulfills the FMLA´s criteria of a serious medical condition;

2. The date the medical condition began and the expected duration of the condition;

3. Whether leave will be intermittent or on a reduced leave schedule;

4. The duration of the leave;

5. If the serious medical condition is pregnancy or a chronic condition, whether the patient is presently incapacitated and the duration and frequency of episodes of incapacity; and

6. If additional treatments are required, an estimate of the probable number of such treatments.


The FMLA does not provide the employer with broad discretion to seek the release of information from the employee´s health care provider. Under the statute, an employer may not acquire the employee´s medical records or a summary medical report that contains any information beyond that set out in the DOL´s sample certification form.


If your primary goal is to return to the classroom, then you might consider contacting your physician and providing them with the authorization to discuss your limitations with your employer.


I wish you the best in 2011.


Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.

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Customer: replied 6 years ago.


under the FMLA, can I get all of my sick days back?


Expert:  LawTalk replied 6 years ago.
Good afternoon Cindy,

Sorry, I have not-so-good news for you in this regard.

While the FMLA will protect your job while you are out, the law allows your employer to immediately use all of your accrued sick days, as well as all of your accrued vacation days, contemporaneously with the time you are out on FMLA leave and beginning from day 1. The only difference is that your employer must pay you for those sick days and vacation days, whereas the remainder of the FMLA leave is unpaid.

I wish you well.

Would you be so kind as to Accept my Answer now, so that I may be compensated for assisting you? Bonuses for greatly informative and helpful answers are very much appreciated. Thanks Again,