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  1. #1
    cmont899 is offline Junior Member
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    Fired after Emergency Surgery, Illinois

    What is the name of your state (only U.S. law)? Illinois

    My wife was rushed into emergency surgery for an ectopic pregnacy, after only being emplyed for a company a month. The company is more than 50 employees but I know that the short duration at the job disqualifies her for FMLA coverage.

    Is there any action that can be taken?
  2. #2
    sandyclaus is offline Senior Member
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    Quote Originally Posted by cmont899 View Post
    What is the name of your state (only U.S. law)? Illinois

    My wife was rushed into emergency surgery for an ectopic pregnacy, after only being emplyed for a company a month. The company is more than 50 employees but I know that the short duration at the job disqualifies her for FMLA coverage.

    Is there any action that can be taken?
    Probably not.

    If an employee is not available to work, that's enough to fire her. Unfortunately, without FMLA, there would be nothing to protect her job. In an at-will employment state (which Illinois is), the company doesn't even need a reason to terminate.

    I suggest that your wife file for unemployment.
  3. #3
    Betty is offline Senior Member
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    Does your wife know if an employee who was there approximately the same amount of time & needed approximately the same amount of time off for a disability other than a pregnancy disability, would also have been terminated?

    She can't be discriminated against due to a pregnancy disability though she gets no special treatment. She just needs to be treated the same way an employee in a "similar" situation would be treated. If they would have been terminated, she can be terminated. They must treat her in the same way as they treat any other temporarily disabled employee who doesn't qualify for FMLA.
  4. #4
    ecmst12 is offline Senior Member
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    I wouldn't call this a pregnancy disability, this was an emergency medical condition that needed surgery, like appendicitis.
  5. #5
    cbg
    cbg is offline Senior Member
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    But under the Pregnancy Discrimination Act, an employee who is pregnant has to be treated the same way as an employee who is not. So it is relevant whether a similarly situated employee who had emergency surgery to remove an appendix would have been treated the same, even if there is no disability as defined by the ADA.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  6. #6
    commentator is offline Senior Member
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    As soon as she is released by her doctor to return to work, she needs to file for unemployment insurance. (Or if that is going to be quite a while, she needs to go on and file immediately. She won't be able to begin drawing yet, if she's not released by the doctor, but she needs to get the claim set up before the quarter changes again in October.

    She will be filing a claim based on the wages she has made during the last 18 months to two years, regardless of what employer(s) she worked for or what the circumstances were under which she left them.

    They'll determine, when she files, whether she has enough covered wages in the last 2 years to set up a claim monetarily.
    If she hadn't worked anywhere for a long time before she took this job, then she'll not have a claim to set up. But if she has been working, and had say, left another job to accept this last job, she very well may have enough money to set up a claim.

    Then they'll look at whether she is out of work through no fault of her own. Since she had to miss work due to having to have emergency surgery, they will determine that she was terminated for a reason beyond her control. If she's monetarily eligible, with the appropriate medical statements completed by her physician, when she is ready to look for other jobs, she'll be able to start receiving unemployment benefits until she finds another job.

    Yes, an employer can fire you if you're not covered by FMLA. But they cannot keep you from receiving unemployment benefits if you are otherwise eligible, because the system says that you could not control being sick, therefore you are out of work through no fault of your own.
  7. #7
    Proseguru is offline Member
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    Quote Originally Posted by cbg View Post
    But under the Pregnancy Discrimination Act, an employee who is pregnant has to be treated the same way as an employee who is not. So it is relevant whether a similarly situated employee who had emergency surgery to remove an appendix would have been treated the same, even if there is no disability as defined by the ADA.
    While true, the threshold of showing that they were "equal" employees is a very high hurdle to overcome. I don't see the OP winning such an argument, even if true. In reality, it is extremely difficult to win such a case...and its a major headache.
  8. #8
    cbg
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    In actual fact, it's not a hard hurdle to overcome at all unless the pregnant employee is the very first one to ever take a leave. You really don't work in employment law or benefits, do you? You just like to disagree with people.

    But since the poster has not come back to confirm whether or not it is the case, it's rather a moot point just now.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  9. #9
    Proseguru is offline Member
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    Quote Originally Posted by cbg View Post
    In actual fact, it's not a hard hurdle to overcome at all unless the pregnant employee is the very first one to ever take a leave. You really don't work in employment law or benefits, do you? You just like to disagree with people.

    But since the poster has not come back to confirm whether or not it is the case, it's rather a moot point just now.
    Yes, I actually have experience with employment law...actual court experience. Employers can say ANYTHING and usually get away with it ... nobody fires people for being pregnant.

    Where your from, the 1920's?
  10. #10
    cbg
    cbg is offline Senior Member
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    Well, actually, some people do fire people for being pregnant. It's illegal, but they do it.

    However, as usual, my point has gone completely over your head. While it is not legal to fire someone BECAUSE they are pregnant, that doesn't mean that someone who is pregnant cannot be fired. In this case, the employee was not eligible for any protected leave time, meaning that they were not entitled by law to take any time off regardless of the reason. She would only be protected from termination if there were valid and supportable reason to believe that another employee of similar position and who also was not entitled to any protected leave, but who had a non-maternity medical reason to be off work and that employee was not fired.

    To put it simply, if the employer would have fired our poster's wife for missing work due to a burst appendix, it's legal for the employer to fire her for missing work due to an ectopic pregnancy. Since, as most of us are able to understand, she would not have been fired BECAUSE she was pregnant, but BECAUSE she missed work when she was not entitled to protected leave.
    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  11. #11
    Proseguru is offline Member
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    Quote Originally Posted by cbg View Post
    Well, actually, some people do fire people for being pregnant. It's illegal, but they do it.

    However, as usual, my point has gone completely over your head. While it is not legal to fire someone BECAUSE they are pregnant, that doesn't mean that someone who is pregnant cannot be fired. .
    I'll agree with that of course....this OP has no recourse IMO other than unemployment & to search for a new job...
  12. #12
    las365 is offline Senior Member
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    Quote Originally Posted by Proseguru View Post
    Yes, I actually have experience with employment law...actual court experience. Employers can say ANYTHING and usually get away with it ... nobody fires people for being pregnant.

    Where your from, the 1920's?
    Were you referring to the lies employers tell when you made the comment bolded above? Because I work for a law firm that does employment law and I can tell you with absolute certainty that women get fired for being pregnant all the time.
  13. #13
    ecmst12 is offline Senior Member
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    This chick wasn't even pregnant, really. Employers (illegally) fire people for being pregnant because they anticipate duty restriction at the end of the pregnancy and extended leave after the birth, and frequent absences down the road for sick child etc. None of those things would be considerations here and I bet the employer did not even know the nature of the medical emergency requiring surgery - all they knew was that she wasn't at work when they needed her, so they had to replace her.

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