Fired while out on medical leave? Need Advice!!!

Simplepleasures · Mar 7, 2008

LAWYER, employment type.

http://www.dol.gov/compliance/laws/comp-fmla.htm

Okami_CCRN, BSN, RN · Mar 7, 2008

I would contact HR and scheule a meeting between them and your manager discuss the issue and if there is anything you can do to get your position back.

I do not believe it is fair that after being given medical leave you are fired, maybe you can seek legal advice.

I am sorry for what has happened to you, Hope you have a speedy recovery.

Jolie, BSN · Mar 7, 2008

I am sorry for your situation, but I don't believe that the hospital has done anything illegal.

In most situations, full-time and qualified part-time employees are allowed 12 weeks of FMLA per year. If an employee needs leave time above and beyond that, the employer is not obligated to "hold" a position or provide benefits.

Your nurse manager may have wanted to work around your absence and hold your position, but she is probably not in a position of authority to make that decision herself. HR and/or the department director may have over-ruled her.

Please investigate your options for continuing your health insurance coverage or obtaining it from another source such as your spouse's employer.

Best wishes.

racing-mom4, BSN, RN · Mar 7, 2008

Jolie is right. FMLA goes on a rolling year. That means if used all 12weeks of your FMLA and returned in August of 07. You are no longer eligble for FMLA until September of 08. You dont have to take all your 12 weeks in one lump sum. You can take 2 weeks for a sons surgery, or 3 for a bad back. But the rolling year starts with the 1st FMLA day out.

I am in no means a lawyer but from what I know they do not legally have to hold your job.

Now if you have banked sick or vacation time, you can use that and extend your time out till that runs dry. Odds are though you had to use that at the start of your FMLA. That is what most places require, but it is not legally mandated.

I know this is easy for me to say, but maybe for some reason it was meant to be. You have to find ~~as hard as it may~~ the silver lining. Somewhere if you squint really hard you may see a sliver of it...

Good luck-

EmmaG, RN · Mar 7, 2008

Not quite. The employer must choose one of four ways to determine what constitutes "12 months"

An employer is permitted to choose any one of the following

methods for determining the ``12-month period'' in which the 12 weeks of

leave entitlement occurs:

(1) The calendar year;

(2) Any fixed 12-month ``leave year,'' such as a fiscal year, a year

required by State law, or a year starting on an employee's

``anniversary'' date;

(3) The 12-month period measured forward from the date any

employee's first FMLA leave begins; or,

(4) A ``rolling'' 12-month period measured backward from the date an

employee uses any FMLA leave

If you suspect that your previous time off is being used against you, that is illegal:

In addition, an employee's use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a "no fault" attendance policy.

I was told by my employer that for each 'event', a separate FMLA request needed to be filed. I am not sure if that means you would be eligible for FMLA again or not; but in any case I'd call the DOL and run it by them (especially since it appears your employer is counting your previous leave against you--- do they fire everyone who is out for medical leave/surgery??)

call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243)

suzanne4, RN · Mar 7, 2008

But notice as the poster stated, she was given 6 months to find another position in the facility to keep her status there, and any employer is not required to hold that specific job for you with the shift that you were on as well as the same weekend rotation. They need to be able to care for the patients that are there, and this applies all over the country. It also depends on what is the HR manual for your facility as to what they do. The need to abide by what they have posted, and that is what needs to be checked out.

If the time off that is permitted per year was already used, then that no longer covers you for that; and those rules under that do not apply here.

barbg524 · Mar 7, 2008

I guess I would not be so upset had I not gone to the manager BEFORE surgery and had her tell me not to worry.

I have a Great dislike for liars and I feel that is what happened to me...I appreciate everyone response and HR said that they did not have to hold the position as has been mentioned. I just feel like I have been kicked while I am down...

I am looking for the silver lining...I was looking for a job when I found this one...I will find another one again...

Does anyone know if I can collect unemployment during this time???

Maybe that is what I should do... :idea:

Thanks again for listening...

EmmaG, RN · Mar 7, 2008

But notice as the poster stated, she was given 6 months to find another position in the facility to keep her status there, and any employer is not required to hold that specific job for you with the shift that you were on as well as the same weekend rotation.

It read to me as though they didn't simply offer to move her to another area, but that she had to apply for a job just like any other (outside) applicant:

They are posting my positon and I will have 6 months in which to secure another job inside the hospital, to keep my seniority.

Nightbloom · Mar 7, 2008

I am a lawyer who is going back to school to become a nurse... if I can get in. Technically because of licensing, unless I am licensed in the state you live in, I can't give "legal advice."

However, I can give my opinion just as others have.

I don't believe that your employer is obligated to hold the position for you under the FMLA after your time is expired. I'm guessing you didn't have any vacation and/or sick time you could have used in this instance.

You may be able to get unemployment. They could argue that you were "fired for cause" and deny your unemployment though. So, you should apply for unemployment but realize they might deny it and you may have to appeal.

rjflyn, ASN, RN · Mar 7, 2008

I have just been terminated/fired/thrown to the curb.
Last summer I had to have surgery (lap Chole and arthoscopic knee) that ate up all my FMLA..So this Thanksgiving when I ended up with a huge hernia and I could not in good consciousness say it happened at work, I had it looked at and determined it could wait..
By January after wearing an abdominal binder so I could work, I was in pain, having some problems, and returned to the surgeon, who said it should be taken care of soon, before I ended up with an obstruction...
Surgery was scheduled for Feb 21st. I went to HR and they said that I would go out on Medical Leave, but in order to go out on FMLA I would have to wait until the end of Aug.
I then went to my clinical Leader who said "don't worry, you will have your job, I will not be posting it, we can get by for 6 weeks.
TodayI received a letter from HR that stated I do not and will not have my old position when I come back, and further more I will not have any benefits after March 31st. They are posting my positon and I will have 6 months in which to secure another job inside the hospital, to keep my seniority.
I am soooo mad I cannot spit straight. What should I do??? My clinical leader is and has been known to talk out of both sides of her mouth in the past..Do I have any recourse???
This is only a 160 bed hospital and have lost our orthopedic surgeons and 22 other doctors in the last 2 years..We are nurse heavy, but seem to have holes in the schedule when it comes out...
I am sorry this is long, but I needed to vent and I want to know is there ANYTHING I can do??

You in good consciousness can say the the hernia didn't happen at work but what are the doctors telling you. It comes down to now not having a job because of it so you might want to rethink that again.

As well talk to you clinical leader, just because HR is posting a position does not mean she has to fill it or even interview for it unless she wants to. She may choose to wait till you can re-apply for said position. I have seen it happen.

You also mention seniority, typically where i grew up that goes along with having some type of union and a contract. What does the contract language say? How about your union rep?

Rj

lilacaf · Mar 7, 2008

YOU ARE NOT ALONE! I was terminated after being out on STD for back and leg problems. I had been a telephonic case manager and had a catastrophic illness/injury that left me with drop foot and neuropathy along with various other injuries. My neurologist did not think the MRIs were serious enough to be investigated further. Fast forward a year and a half and I had been able to find a sedentary job and had been working at a large insurance company when problems developed. The leg swelled and suddenly I was unable to walk. The back felt like I had been "speared" in the butt with pain and burning all the time. MRIs were taken again and still the neurologist thought the drop foot would get better over time and referrals to other specialists were flying. I ended up after PT, spinal taps, nerve studies to see a neurosurgeon. My back was shot. From the top down. All the years of nursing, exercising, picking up kids had taken their toll on my body. Once I informed my disability case manager of the surgery, paperwork started flying with the insurance company. I received this vague letter about FMLA, rights under the ERISA act, which was told to me to be my only recourse. The employer said I voluntarily walked off the job. I found this to be ludicrous considering I hadn't been "on the job" or even able to walk from the parking deck to the office! To make matters worse, I was hired in under the ADA. Sorry this is so long but I wanted to say, apply for unemployment. If you get denied, appeal it. If you get denied again, appeal it. Don't give up if you feel it was undeserved! I feel in my heart of hearts the insurance company that I worked for (and my insurer) did not want to pay for a high priced surgery in addition to all the recent hospitalizations, testing ... I lost insurance coverage 2 weeks after the spinal fusion and have not been able to afford the Cobra. I for one, am not going to keep taking it and plan to keep appealing with the DOL until it either gets settled or goes to the state supreme court! Stay furious and act! Be a thorn in THEIR side like they have been in yours! What a messed up profession!