Medical leave

[mbtb1960]

What is the name of your state? Illinois

Two months ago I was diagosed with a condition that required major surgery. During the period of illness and recovery my salary was stopped but I was not terminated from the company I worked for. I contacted my supervisor when my doctor released me to return to work. My employer notified me at that time that they had replaced me and my position there was no longer available. I was instead offered a totally different position in one of their other branches that would require a 4 hour round trip commute. If I refuse this offer can I consider that I have been terminated?

 

[nohr4u1yr]

Fmla

Were you covered under FMLA?

 

[cbg]

Not everyone knows how FMLA works. Let's make it easier:

1.) How long have you worked for the company?
2.) How many employees does the employer have at your location? Overall?
3.) Exactly how much time, total, including any pre-operative visits or time missed for illness connected with your surgery, did you miss in last 12 months?

 

[mbtb1960]

I've been employed at that company for 13 years. There are about 30 employees at the location I was working out of and approx. 45-50 throughout the corporation. I was off work for almost 8 weeks.

 

[cbg]

If the company has under 50 employees overall, FMLA does not apply.

That being the case, your employer has no legal obligation to return you to the same position and they may, legally, put you in a different position, a different location, a different shift, or let you go altogether.

No one here can possibly know what your employer's position will be if you refuse the transfer, but generally refusal of a transfer can be considered insubordination, which, yes, is grounds for termination.

 

[mbtb1960]

Do I have any recourse if FLMA does apply?

 

[cbg]

IF FMLA applies, then as long as you return to work within 12 weeks, you must be returned either to your own job or one that is equivalent in all respects.

BUT. FMLA does not apply unless your employer has a minimum of 50 employees within a 75 mile radius, and had 50 employees for at least 20 weeks of the current or past calendar year. So even if the count is 50 employees today, if there weren't 50 employees within 75 miles for at least 20 weeks in 2004, FMLA does not apply.

Clarification: IF your employer had a minimum of 50 employees for at least 20 weeks in calendar 2004, then it still applies even if the count is 49 right this minute. But if they didn't, then FMLA can't help you.

 

[mbtb1960]

If my employer is a corporation would the 50 employees encompass everyone employed by them, not just at the location I was at? If that's the cast then there is a very good chance their employees exceeded that amount. Is there any way to verify that information?

 

[cbg]

It's 50 employees within a 75 mile radius, regardless of how many locations that encompasses. But I thought you said the overall count was 40-50.

 

[mbtb1960]

There were 48 employees that I knew were currently employed at the time I was on medical leave. Since they are a corporation there are most likely people on the payroll that I don't have knowledge of.

 

[cbg]

Not necessarily. My company is incorporated and it's only my partner and I. I've worked for companies that were incorporated that had less than 50 employees before.

But if you can confirm that there are more than 50 employees within a 75 mile radius (if they have a salesman in New York or Atlanta or Sacramento, he doesn't count) then you can claim a FMLA violation.

 

[mbtb1960]

Thank you so much for your help.