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My wife has lupus she had to be hospitalized after

Customer Question
My wife has lupus...

My wife has lupus she had to be hospitalized after thanksgiving I had to leave work she was also pregnant and had to have an emergency c section at 6 months the baby was 25 weeks & is now in the neonatal intensive care unit I have not been to work since. Can my employer fire me

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

Texas

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

Full time

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

Only that I have been in constant contact with my employer & made them aware of my situation

Submitted: 6 months ago.Category: Employment Law
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1/8/2018
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,574
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.

How long have you been out of work?

How long have you worked with this employer? Are you full time?

How many employees does this employer have? 50 or more?

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Customer reply replied 6 months ago
I have been off work for a month I’m full time have worked there for 5 years they have over 50 employees
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago

Ok. Under the Family Medical Leave Act, which you should have been talked to about by now, you are entitled to up to 12 weeks of family related medical leave each year.

You can't presently be terminated just for missing a month, but you need to have your wife's doctor fill out an FMLA form, just to be perfectly clear with the employer. You are entitled to time off for her care and for assisting in the care of your son. Now, this can be a little tricky, as you aren't a doctor so you can't really assist with your child, but when a child is born, you are also entitled to FMLA. Now, the combined amount of time, between both your wife's medical and your son's birth, is still just 12 weeks. It's not 12 weeks per issue, but rather, per year.

If you stay below that 12 weeks though, you are protected from termination.

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Customer reply replied 6 months ago
they can’t fire me as long as I file an fmla form thru doctor
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago

They can't fire you simply because you are absent, if you file FMLA.

FMLA doesn't protect you from other legitimate reasons for termination. If they were already planning on a termination/lay off, filing FMLA wouldn't make you immune to being included in that, if you already were.

I'm just trying to be completely clear. Your time off is protected, so you can't be terminated just because you took the time off.

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Customer reply replied 6 months ago
I’ve been receiving unemployment since I’ve been would that make any difference?
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago

FMLA is supposed to be unpaid, but FMLA and unemployment don't really interact with each other. Nothing about receiving payments, from unemployment or short term disability, really effect that.

Though I'm not sure how you are getting unemployment if you are still employed. I know that you can get unemployment, in limited circumstances, when you quit a job in order to care for a sick family member. If you filed for unemployment in that fashion, then it may look like you quit your job and then FMLA wouldn't apply here.

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Customer reply replied 6 months ago
Work was slow before all this occurred & I filed under loss of hours
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 6 months ago

If you are still filing under loss of hours, you probably need to address that with the state. I know this isn't your intention, but the state would consider that fraud, as right now you are not working due to your family's medical concerns and that usually only allows for unemployment if you actually quit your job.

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

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.

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