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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20228
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I was recently hospitalized for nearly a month, while undergoing

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I was recently hospitalized for nearly a month, while undergoing a lung biopsy, and removal of a brain tumor from my right frontal lobe, When I was sent home to recover, I discovered that I had been terminated from my position as a Laser Printer Service Technician (a pretty darn good one, at that!). They used the last of my PTO (55 hrs) to create a final paycheck, which was then used up to pay for my final insurance premium.
Everyone is telling me something different: It's illegal! They can't do that! Others say: yes they can! They can do whatever they want!
I received no severance package from the company; I am still being treated for cancer (so I can't really be employed) and they take away my income and insurance. So it all boils down to one question:
Can they really do that to a person after 13 diligent & productive years?
Do I stand a chance of surviving this?
Larry in North Dakota

Thank you for the information and your question and I am sorry to read about your situation. Can you tell me about how many employees your employer has? How long ago were you let go?
Customer: replied 4 years ago.

My former company has approximately 20 - 24 employees, only 3 capable of doing the high-end repair of virtually any printer, of which I was the best).

I've had a few medical issues over the last 3 years, (which put a crimp in everyone's plans) from which I recovered and continued to work.

On June 2nd of this year (2013) I awoke with a severe headache and went to the walk-in clinic at my hospital. They did an MRI, found a brain tumor; did some chest X-rays, found a spot on my left lung.

I was on blood thinners and Plavix at the time, so I was sent home for a week or so to let those medications leave my body ( for obvious reasons).

I had the lung spot removed and biopsied on June 10th, 2013, and the brain tumor removed on June 12th, 2013.

When I was released from the hospital, I called the company owner to let him know and that was I was told my services were no longer required.

Date on final pay stub - June 24, 2013

Hello again and thank you for the additional information. The unfortunate fact here is that because your employer has less than 50 employees, they, and you, are not covered by the Federal FMLA which is a law that provides job protection for up to 12 weeks in a 12 month period for employees who have to miss work because of a serious health condition. You would have qualified in every way, except for the number of employees your employer has. That means that your employer could let you go if they have an attendance policy that they enforce neutrally. In other words, as long as all employees, disabled or not, are held to the same standard, your employer can enforce those rules in your case.

That said, you can request a reasonable accommodation under the Americans with Disabilities Act in the form of more time off, if you need it. If the employer can accommodate you without causing an undue hardship on the business, then they are generally required to. So, you might ask for that and if they say no, you can file a discrimination complaint with the EEOC. However, if they are fairly small company and have enforced their attendance policy fairly, you are not likely to have much success with the complaint.

Just a note, your employer will need to notify your health care insurance administrator of the change in your status, and they will send you your COBRA rights to continue your insurance at your expense. You might consider speaking to your employer and seeing if they would be willing to cover your COBRA costs for a few months while you get yourself back on your feet, or if you can not return to work, until you can apply for SSDI. The employer does not have to offer you severance or COBRA payments, but if you have been a loyal employee, they might offer if you ask.

Please let me know if you have any specific follow up questions. I would be glad to assist you further if I can.
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