any help or advice would be great

[shonisko]

I live in Ohio, my wife was sick on and off for a while, she took a few days off per doctors request. All was good with that.
She went to her follow-up appointment and the doctor said she needed surgery and that means like 4 weeks off work.
She had all the FMLA paperwork filled out and the doctor faxed it to her HR department. When we got home she immediately called her supervisor to let her know what was going on and the paper work from her doctor was faxed over. We felt all was good.
Then a week before her surgery she emailed her supervisor about a unrelated question, and her supervisor told her to call, and when she was told that she was terminated and shortly after she received the notice in the mail regarding her termination, and was dated for the day she got the news from her supervisor. The HR department said it was because they did not receive fax, and it is her responsibly to make sure they got it. They may be right on that point but she did notify her immediate supervisor what was going on. The doctors office says they have no receipt of fax being sent, just a verbal confirmation to my wife that it was. We immediately took paperwork from doctor to her work but that really didn’t help her out. To top it off the day before her surgery we found she did not have insurance any longer so I had to go to HR department and pay $600 to pick up Cobra so surgery was covered. She works as a RN at a hospital, she has worked for them for 15 years, and just received a award for the outstanding nurse of the year. The hospital is a union hospital, UAW, She contacted her union rep and was told she was wrongfully fired because the union rep and her have to be told about the termination together, not by phone or mail. A few days pass and the union rep says they wont do anything so she would file a grievance. My wife ask the union rep if she should start looking for a job or file for unemployment and the reply she got was “I don’t know” Then we received a bill from her hospital for $13000 because of tuition reimbursement they paid out to her. You have to work their 3 years if you use the tuition plan.
Now of course mortgage is going to be 2 months late and other bills are going to pile up fast. We now have to get paperwork to get insurance from my work for our family.
The rep told her to be patient but don’t seam to be giving her any answers. Since we already live paycheck to paycheck and had to spend $600 for cobra just for her , we also had to pay $500 for prescriptions for my kids and her. I do not no if its worth pursuing or just cutting our losses and move on. Advice we get from people is to get a lawyer, but is it worth spending the money on going after a company that has way more money and a staff of lawyers. That in a nut shell is my problem, if anyone has input for us that would be great.

 

[cbg]

Just for clarification - how long was it between when the doctor faxed over the FMLA paperwork and when your wife called the supervisor? I'm going somewhere specific with this.

 

[shonisko]

it was a matter of a hour or so that she called to let her supervisor know.

 

[cbg]

Whoa - back up. I'm not talking about when she called to say that the FMLA paperwork was coming - I'm talking about when she called and was told she was terminated. How long after the paperwork was (allegedly) faxed did that take place? Was it more or less than 15 days?

I see legal recourse for you either way - I just want to know which way to go.

 

[shonisko]

I don't have the exact dates with me, but I am pretty sure it may have been within the 15 days.

 

[commentator]

Oh, and by the way, she needs to file for unemployment immediately, regardless of whatever else she does.

Even if she's right now unable to work due to this surgery, if she thinks she'll have a lawsuit, etc. Still, right now, as soon as she found out she's discharged, she needs to get that unemployment claim filed. It will sit in place until she is released by her doctor to return to work. Claims are based on the past 18 months of wages, and are good for one year from the time of filing.

If the company still doesn't want her back when she is healthy again, has not been forced to rescind the termination, whatever, she will be ready tobegin to file for weeks of unemployment benefits while she's looking for another job.

If she was discharged by the company (regardless of whether this was a legal action on their part, which it may take a long time to establish this) due to illness with a doctor's statement, she will be, when she is released and able to seek work again, eligible to draw benefits, because she will be out of work through no fault of her own. They consider illness as something you could not have avoided.

 

[cbg]

If she was termed less than 15 days after she notified them that the FMLA paperwork was coming, she's golden, unless she'd had it for a while before the doctor filled it out. From the time the company is put on notice that there is a potential FMLA issue, they are required by statute to give her 15 days to get the paperwork turned in. When you check the dates, if it was less than 15 days from when the company FIRST was notified that there was a potential FMLA issue until she was termed, tell your wife to run, do not walk, to the nearest employment attorney and/or the nearest telephone and file a complaint with the US DOL regarding a FMLA violation.

If it was more than 15 days (and remember I'm talking about from the FIRST time the employer could possibly have known that FMLA might apply) then it becomes more tricky. The company is technically correct that it is her responsibility to see that the paperwork is received, and if from first notification to termination exceeds 15 days, then as far as the statute is concerned, they were within their rights to term her IF the paperwork from the doctor was not received within 15 days AND a similarly situated employee with a non-FMLA absence of the same length would also have been terminated. If both of the above statements are true then as far as the LAW is concerned this was not a wrongful termination and her recourse is going to be through her union contract. In that case she will want to work with her union rep.