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ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 16791
Experience:  Licensed Texas General Practice Attorney
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My wife just got fired from her work today because she had

Customer Question

My wife just got fired from her work today because she had to call in sick. And she was legitimately sick. In the voice message that they left her, they said that because it was over a three day weekend (labor day), and that because she had just recently taken a vacation (our wedding anniversary), they are letting her go. I will add however, that she was under PIP ( Performance Improvement Plan) for "excessive calling in" a few months ago, but has been taken off of PIP before her termination occurred. The reason why she had a PIP was because of frequent doctor appointments she had to undergo, due to a pregnancy miscarriage. Her work at the time, told her she HAD to use sick days when she was gone to her doctors appointments, even when she told them that she wanted to take an unpaid day off. It was these doctors visits, and amounted stress as to why her employer put her on a PIP in the first place. Is this legal? and is there anything my wife can do about this other than just collect unemployment? We do live in the state of Oregon, where it is a right to work state, but would this be able to fall under the category of wrongful termination?
Submitted: 2 years ago.
Category: Employment Law
Expert:  ScottyMacEsq replied 2 years ago.

Thank you for using JustAnswer.

I'm sorry to hear about your situation. Can you tell me if your wife qualified for FMLA (that was not used up)? That is, did she work at least one year, at least 1250 hours in the past year, and work at a location where there were at least 50 employees within a 75 mile radius of her location?

Expert:  ScottyMacEsq replied 2 years ago.

Did you see my follow up question to your issue?

Customer: replied 2 years ago.
Hi Scott. Sorry for not replying back sooner. So to answer your questions, my wife's work does offer FMLA, and she did work there over a year at about 2,080 hours. And yes, there are 50 plus employees within a 75 mile radius of her work.
Expert:  ScottyMacEsq replied 2 years ago.

Did she have a doctor's note?

Customer: replied 2 years ago.
No she did not as we felt it was not an emergency situation
Expert:  ScottyMacEsq replied 2 years ago.

I see. Again, I am sorry to hear about your situation. The fact that it was not serious and only a day's absence means that it wouldn't likely be a "serious medical condition" that is covered by FMLA. That was really the one thing that I was grasping at anyway, but if she didn't even get in to the doctor then that's most likely not an option. The final regulations provide examples, in section 825.114(c), of conditions that ordinarily, unless complications arise, would not meet the regulatory definition of a serious health condition and would not, therefore, qualify for FMLA leave: the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc. Ordinarily, these health conditions would not meet the definition in 825.114(a)(2), as they would not be expected to last for more than three consecutive calendar days and require continuing treatment by a health care provider as defined in the regulations.

In the absence of any exception or written employment contract or written employment policy that gives her a right to some employment, her employment was "at will", as Oregon is an at-will employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

Because FMLA would not apply, and assuming that there was not any evidence of illegal discrimination (age, race, religion, gender, disability) then I'm afraid to say that what they did, while illogical, immoral, and unethical, was not illegal.

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (good or better). Thank you, ***** ***** luck to you!

Expert:  ScottyMacEsq replied 2 years ago.

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Expert:  ScottyMacEsq replied 2 years ago.

Did you have any other questions before you rate this answer?