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I currently reside in Anne Arundel County Maryland. I have…

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I currently reside in...

I currently reside in Anne Arundel County Maryland. I have open heart surgery (a non-elective surgery) that will put me in ICU for 3-5 days - and out of work from 6-8 weeks. I have a letter from my cardiothoracic surgeon regarding this, which I gave to my employer. They stated that I probably will not have a job upon return due to the circumstances. I would be considered for short-term disability, and if I'm reading the laws correctly, it states they cannot do that. Furthermore, the policy handbook they have in place is incorrect regarding PTO time. They are off as far as accrual, as well as the timing as to WHEN it can be used. For example: MD Law states now that you accrue 1 hour of PTO per 30 hours worked. They have that decreased about 48%. They also state in the handbook that it cannot be utilized until 120 days or 4 months - also incorrect. MD State law is stating that it is 106 days, as of February 11, 2018. My concern is that I will not have a job upon recovery of my open heart surgery - and IF they take me back, they will retaliate due to my pointing out the clear errors in the handbook.

Lawyer's Assistant: Have you discussed this retaliation issue with a manager or HR? Or with a lawyer?

The business is a family owned urgent care center. We do not have a HR representative, and I have discussed it with the "manager," who is the owner's wife. I have not confided in an attorney yet.

Lawyer's Assistant: Are you an "at will" employee? Do you belong to a union?

Maryland is an "at will" state; however, they have exceptions such as the disability (which I will be on while recovering from the surgery) - It is not a union.

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

Not at this time. I'm sure there are other things, but that's the initial thing. The stress of not knowing that I'll have my job back is putting more and more stress on my heart. (which is what my surgery is for)

Submitted: 9 days ago.Category: Employment Law
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Customer reply replied 9 days ago
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Review Legal Documents. Let me know if you need more information, or send me the service offer(s) so we can proceed.
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8/7/2018
Employment Lawyer: Marsha411JD, Lawyer replied 8 days ago
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,984
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
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Hello,

Thank you for your post. Can you please tell me if your employer has more or less than 15 employees? If more, is it at least 50? Also, how long have you worked there and are you a full-time employee? I will be away from my office for a few hours this morning, but will respond as soon as I become available after you have provided the information.

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Customer reply replied 8 days ago
We have more than 15 employees but less than 50. I’ve been there for 4 months, full-time.
Employment Lawyer: Marsha411JD, Lawyer replied 8 days ago

Hello again and thank you for that information. I was, among other things, checking to see if you qualified for FMLA, which you don't. One reason is that your employer doesn't have enough employees to fall under the law and the other is that you have not worked there as a full-time employee for at least 12 months. So, FMLA, which generally provides job protection in these cases is off the table.

I can't address your PTO issue, other than to discuss the law, because I don't have the facts from the employer's perspective or your personnel record. You are correct in saying that the new law requires employers of 15 or more employees to provide 1 hour of PTO for every 30 hours worked. As for accrual and use, then following restrictions apply:

employer may:

  • Forbid the use of paid leave until after the employee has worked 106 calendar days from his or her date of hire;
  • Cap leave accrual at 64 hours total and 40 hours annually;
  • Refuse to pay out unused, accrued leave upon an employee’s termination or resignation;
  • Require up to seven days’ notice for the use of foreseeable leave; and
  • Implement policies designed to prevent the improper use of leave.

If the employer is violating the law you have an option of filing a complaint with the Maryland Division of Labor and Industry or hiring an attorney to file suit.

As for the other issue, which is job retention. Since you don't qualify for job protection under FMLA, you have to fall back on the Americans with Disabilities Act. Under the reasonable accommodation rules, the employer must accommodate an employee's request for time off due to a disability (temporary or permanent), as supported by their medical records/physician, if the employer can do so without causing and undue hardship on the business.

Therefore, the employer must do the evaluation and make the determination once you request the accommodation under the ADA. If they say that they cannot accommodate you, then your option is to file an ADA denial of reasonable accommodation complaint with the EEOC and also to sit down with a local employment law attorney and discuss your case so that you and your attorney can decide the next step after your complaint is filed.

If the employer is correct in their decision to deny accommodation, then they can lawfully let you go if they let other employees go who cannot meet their attendance requirements.

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to reply to this answer and let me know that I covered your question, then the Site will give me credit for assisting you today. Thank you

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Employment Lawyer: Marsha411JD, Lawyer replied 7 days ago

Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 7th. For some reason, the Experts are not always getting replies, or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit (paid by the Site) for our work, that the customer thinks have gone through. In your case I have received neither.

Please keep in mind that I cannot control the law or your circumstances, and am ethically bound to provide you with accurate information, but not legal advice or opinions, based on the facts you give me, even if the news is not good. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator. Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue,if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/

Thank you.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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