fmla exhausted, now on ltd, but terminated

Question

Hi Everyone - I know this is a medical forum but some of you may have experienced the same thing and be able to help. I started tx back in May. I took an fmla a month later due to the sx of tx, exhausted it, now I am on ltd. My dr has not released me to return to work (due to anemia, neutropenia, etc), however, according to employer, I was terminated due to being off work more than 90 days. I thought the ADA protected our employment if we were undergoing tx and experiencing such sx. I would like to have my employment reinstated but not sure how to go about it or if it is even possible. Of course, a lawyer is probably my best bet but I wasn't sure if there was any footwork I could do on my own. I live in Missouri, my employer has more than 50 employees and I have worked for them consistantly and contiguously since 1990. Anyone have any ideas?

IAmTheWalrus · Answer

FWIW, I found a pretty good document explaining the roles of FMLA, SSI and SSDI, with practical advice on how to deal with it all at:

http://www.hcvadvocate.org/hepatitis/About_Hepatitis_pdf/1.1.1_Living_With_HepatitisC/Disability_Guide_Final.pdf

choprchk · Answer

My hr dept told me that I could apply for anything available when I'm able to return. Yes, I'm paying for cobra.  You got that right, huge cluster f%!!

ejoli · Answer

Choprchk,            You know that when my short term went to long term after 12 weeks I was terminated from my job also. They don't have to hire you back unless they have an opening. I knew that so I wasn't supprised.  They did have to replace me after 12 weeks though. They accually didn't replace me since they are cheap a**s They just are having everyone else assorb my work.Need to find a new career for after if I am able to work.I'm going to need health insurance since my husband is 62. They are screwing around on his job so he'll quit and they know I'm not working right now.I have applied for SSDI but even if I'm approved it's 2 years from then till I get medicare. Are you paying for COBRA?  It is a cluster huh?    Take care,    -Libby

choprchk · Answer

Joey - you definitely answered my question about the ADA and if it protects someone's job.  I'm posting what I read at the hcvadvocate.org site regarding ADA, just in case someone else needs the info:

"Probably the most common misunderstanding about the ADA is that it protects your job if you have to stop due to a disability. There is nothing in the law that prohibits an employer from terminating your employment if you do not perform your job, even if it is a disability that prevents you from doing so."

choprchk · Answer

The fmla was not really in question....I understand the 12wks in a period of a year....I just posted that to let you know how long I've been off work. 

Thanks for the links. I'll go do some research. As for ltd, I am covered for 18 months or until I am able to return to work. I haven't applied for ssdi yet but the ltd insurance company just requested I do so. More paperwork - UGH!

Bill1954 · Answer

Yikes and wow. Sorry to hear of your circumstances; I wish I could offer you help, but I'm very ignorant about all this. I agree with the obvious; you should certainly contact your employer's HR department. There are a couple of attorneys in here, but I don't think they belong to the misssouri bar.

Best to you,

Bill

Joey_M · Answer

One clarification, FMLA would no longer apply beyond the 12 week period even if the employer granted an extension. This was decided by the Supreme Court  a few years ago, Here's a blurb on it for anyone into legalese:
http://www.mobar.org/57359cf8-82a6-4edc-be92-082a0f88934a.aspx

Joey_M · Answer

Real bummer that your employer isn't sympathetic to what you are going through. I manage HR for a small company in CA. I did a bit of research and don't think ADA or FMLA apply to you unfortunately. FMLA only covers 12 weeks and the ADA only applies while you are actually working in a position. Here are a couple of links that explain it in more detail:
FMLA: http://www.hcvadvocate.org/hepatitis/hepC/FLMA.html
ADA: http://www.hcvadvocate.org/hepatitis/hepC/ADA_2004.html

How long are you covered under LT disability? Have you applied for SDI? 

But for now, you are best to focus on your treatment and getting through it if that is possible. Once you are ready to go back to work, you might see if you can find a sympathetic boss or executive of the company to see if they would reinstate you. 

Good luck & hugs,
Joey

Gee704 · Answer

I hope I can help unmuddled this some for you.

First and foremost, FMLA is a federal law so start there to understand coverage.
If the state of Missouri covers requires better protection than the federal FMLA, then your state law would override federal.

FMLA allows a leave of absence for 12 weeks in a year timeframe without fear of losing your position or employment. After 12 weeks your employer may replace you unless you request and are granted an extended leave of absence. 

One thing, the year is not a calendar year. If you take a leave on say  Feb. 1 and exhaust all 12 weeks. You would not be eligible for protection until Feb 1 of the following year for another leave.

I would recommend contacting the human resource department at your employer for further discussion.