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I have a friend who is on state disability because of liver…

Customer Question
I have a friend...

I have a friend who is on state disability because of liver cancer. She told her manager at work her situation and she communicated frequently. Meanwhile she came home from Chemo therapy to see she was fired. Is this legal and what action can she take? Thanks for listening

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

I am sorry she is in California, Mountain View, Ca. Her workplace is in Campbell, Ca.

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

She is a C.N.A for Kindred Health at Home out of Campbell, Ca. and was working a 9 hour day 5-6 days a week. That is considered full time, but not given benefits.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Sorry I will do this later something has come up. Can you tell me the costs?

Submitted: 6 months ago.Category: Employment Law
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Answered in 9 minutes by:
12/30/2017
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,572
Experience: Employment/Labor Law Litigation
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

It could be illegal, but also could be legal. There isn't enough information here to really know. A person can be legally terminated while on disability. What matters is the basis for the termination. For instance, a person on disability schedule for a lay off is not immune to that lay off simply because they are on disability. If the company has a scheduled lay off, that is a legitimate, non-discriminatory basis for termination, which has nothing to do with the fact that the person is on disability. As another example, if a person on disability is found to have stolen, again, you have a legitimate, non-discriminatory basis for the termination which does not regard the disability.

Now, there are other potential reasons for termination that could be legal. When you take medical leave, there is only so much of that time that is legally protected. Under Federal law, a person can take up to 12 weeks of protected medical leave (called the FMLA). Under the American's with Disabilities Act, that time frame can be extended a few weeks, but not indefinitely. If your friend had missed more time from work than that, she could be legally terminated based on the protected status having run out.

If the employer wasn't large enough (50 or more employees) or she hadn't worked there long enough (12 months) before taking this leave, she might not have been eligible for the FMLA in the first place, which would have given her a very short window of protection under the ADA for absences.

So, as you can see, there are several considerations here that I can't make specifically for her, because I don't have the full picture. If she feels that she was entitled to FMLA and ADA protection, didn't miss more than 12 to 15 weeks of work, and there isn't a legitimate basis for the termination, then she should file a complaint with the Federal Department of Labor (California office).

(On the issue of her not getting insurance, that is a separate matter that doesn't really play into the question above. She should report this to the State Department of Labor).

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago

I saw that you opened another question rather than coming back to this one. The other one is a duplicate.

I have answered your question above.

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Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago

I saw that you posted the exact same question again, so I closed it as well. That is called a duplicate question and they get closed to avoid confusion with other experts answering a question for what they believe to be the first time.

You have not asked me any follow up questions related to the answer that I have already given you. Did you require some additional information?

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Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago

I saw your additional question. You can post those in this same thread without starting a new question. When you post an entirely new question is causes problems with multiple responses.

"Hi: I am asking an additional question. Doesn't the fact that the employee (my friend) did communicate with the staffing manager frequently and the staffing manager did NOT communicate this to HR or tell my friend what exactly she had to do for her protecting count as any kind of negligence at all? Is there nothing that puts the company at fault and thus created an illegal action against the employee? Thanks"

Your follow up question is missing all of the information that your first question was missing. If your friend legally should have been under FMLA protected and the manager here failed to report that fact to HR, then certainly yes that would be negligent. Your friend would have an FMLA claim and could try to sue the individual for negligence.

However, if your friend had exceeded her legal protections under the FMLA or simply never had them, then there is no duty anywhere and so negligence.

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Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago

Everything here hinges on whether or not your friend had legal protections under FMLA/ADA or both. Without those protections, there is no claim here.

If she was under those protections, then her claim is with the Department of Labor and/or the EEOC in her state.

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