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Fired For Being Sick And Taking Care OF Sick Child

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MarisaL

Junior Member
What is the name of your state? NJ

Last week I was home with my daughter with Roseola. That wed. I came down with the flu and 104 fever. Thurs morning I got a call from my boss stating that they were firing me for not coming to work. I called everyday maybe twice to let them know the condition of my daughter and myself. In the Union handbook (I am not union) that they have for the shop it says you get a verbal warning, then written warning, then termination. I have not gotten any warning, just fired. Is this illegal???

Marisa
 


Beth3

Senior Member
If you're not in the union, then whatever the union handbook says is irrelevant. How long have you worked for this company?
 

MarisaL

Junior Member
I've been there 2yrs. and they never had a regular employee handbook, so they just always went by unions rules, with some exemptions.
 

Beth3

Senior Member
Apparently this is one of those exceptions.

I asked how long you worked there to see if the employer is subject to the Family and Medical Leave act. Assuming there are 50 or more employees, they are. But I doubt your and your daughter's illnesses meets the criteria of a "serious medical condition." Among other things, you would have had to be absent for your own illness in excess of three days, not a combination of both your illnesses.
 

MarisaL

Junior Member
well they don't have 50 or more employees. And actually my daughter does have serious medical condition. She has Kidney reflux disease which I thought she was getting sick from that, she was taken to the hospital a week before this for the kidneys. But this time it was not the kidneys. and from what the shop steward told me was that they can't fire you for taking care of a sick child or being sick yourself. Is this true??? do i have a case???
 

Beth3

Senior Member
So then we can forget about the FMLA.

and from what the shop steward told me was that they can't fire you for taking care of a sick child or being sick yourself. Is this true??? No, that's not at all true. I can't speak to the CBA in force there (which apparently doesn't even apply to you) but as a matter of law, that is completely incorrect. I wouldn't look to a shop steward as a resource on employment law matters.

Even as a matter of logic, you must know this can't be accurate. If you had a babysitter (for example), and she called in sick two days a week each and every week, according to the shop steward you couldn't fire her. Obviously, that's just nonsense.
 

MarisaL

Junior Member
yes, that is true. i thought it sounded a little fishy. just thought i'd ask. so what you're saying is forget trying to fight the wrongful firing??
 

Beth3

Senior Member
I'm saying this is not a wrongful (illegal) firing. No statutory leave laws apply and you are not a union member therefore the CBA does not apply. You have no legal basis to challenge the decision.
 

Katy W.

Member
I think you are also trying to say here that you might be covered under the ADA because you are the primary caretaker of your disabled child. As Beth said, that wasn't the reason you missed work. But even if it was: you must identify yourself to your employer as being covered by the ADA in order to receive accommodations, such as the ability to have a few more sick days per year, or whatever accommodation your employer and you agree on. You do not have to use the legal language "ADA accommodation", but you do need to tell him/her that either you have a disability or someone whom you care for has a disability, and you need a change at work, that doesn't cause him/her hardship, because of that disability. You will not ever prevail in any type of charge if your employer was not notified of your coverage under the ADA about the disability before the disciplinary action.
 

LSchmid

Member
Actually I have to disagree with Katy regarding the ADA issue for her daughter. ADA covers the employee, not the EEs relative. If her company does not qualify for FMLA and she has used all her available sick time, etc. the employer has every right to terminate her employment. ADA does NOT require an employer to make an accomodation for the care of a relative with a disability.
 

Beth3

Senior Member
LSchmid, I'm afraid you're wrong. Protections against discrimination under the ADA do include the disabled person's caregiver (parent, spouse, etc.) If I fire you BECAUSE you have a disabled child (for example), that is a violation of the ADA. An employer is also required to consider reasonable accommodations if requested by an employee who is the caregiver of a dependent with an ADA qualified disability.
 
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MarisaL

Junior Member
To be honest I didn't have a chance to say anything and the last day i was out was my last sick day. The only thing they told me before this was to never come to work sick again. I am just actually glad I'm out of that place. They never paid me for the hours I really worked, cut my pay and vacation time. Thats the reason I am so mad, the rules always changed and they only pertained to me. The company was not run right and nothing was ever on paper only verbal. So I was treated unfairly and there is nothing I can do about it. I think I have accepted that.
 

azmiranda

Junior Member
I had the same exact thing happen to me except I actually even filled out FMLA papers and was approved.
My son was very ill and had to have emergency surgery on Dec.2, 2005.
I missed probably 2 weeks and then returned.
I went into work on January 12 and they fired me saying I had missed too many days and that they "had no choice but to let me go". :mad:
I went to see my lawyer who is a very well, regarding lawyer and he told me exactly that I thought that we could fight it but it is with the knowledge that you are still going to be wearing a scarlet letter and they will just get you for something else down the line.
I just read something in a Newsweek that says in America you can be fired for no reason at all and it is legal.
So much for integrity huh?

AZ
 

Beth3

Senior Member
I just read something in a Newsweek that says in America you can be fired for no reason at all and it is legal. That's hardly news. The article is referring to the "at will" employment doctrine which is rooted in English common law. It means that you (the employee) can leave a job at any time you wish to and for any reason. Conversely, the employer can also sever the relationship at any time for any reason except a specifically prohibited reason (such as firing someone because they took FMLA.) That said, employers don't go around firing employees willy-nilly just for the hell of it. There's always a reason, even if occasionally it's a bad reason. Putting ethics and integrity to the side for a moment, terminating employees for "fun" and/or in violation of the law is a stupid business decision.

I went to see my lawyer who is a very well, regarding lawyer and he told me exactly that I thought that we could fight it but it is with the knowledge that you are still going to be wearing a scarlet letter and they will just get you for something else down the line. And you took that advice and didn't do anything?!? Wow. He must not have a lot of clients with that defeatest attitude. Violations of the FMLA are resulting in judgments and awards of hundreds of thousands of dollars and higher.

If it's not too late, I suggest you confer with another attorney. Be sure it's an employment law attorney this time. There is a two year statute of limitations to file a complaint with the federal DOL; three years for willful violations.
 

Katy W.

Member
Listen to Beth, please. If we have gotten all correct information here, it appears that there was an FMLA violation and it really shouldn't go unchallenged, or your employer may do the same thing to his next scapegoat.

ALSO you should contact the Dept. of Labor about your unpaid wages. It does not take a lawyer to do this and, again, if everything you have told us is true this appears to be a violation that needs to be reported. The fact is that the government relies on individual employees filing claims against discriminatory employers to enforce their civil rights laws.
 

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