pregnancy/ill child- trying to terminate me

[dezomatic]

undefinedWhat is the name of your state?CA

*I have worked for a private owned retail company for over a year. During my first year I became preganant and had a very difficult pregnancy that dictated me needing medical attention and time away from work. (all documented and supported) Even through my difficulties I took annual sales up 2.3 million (23% over goal) and was able to maintain my responsibilities to the best of my ability... attendance was addressed by employer upon my return from maternity leave.
*My child is now 5 months old- we have been in and out of the hospital due to severe illness-) all documented and supported)
I receieved my year review.... I was rated as someone who performs and even recieved a small raise with increased incentives along with a book on Leadership.
Upon my return I need to convey the unbelivable situations I have contended with and now my job is being placed in jeaporday and they are falsley accussing me of poor performance!
I am now under medical supervision for Panic Disorder due to the stress at work- I am only recieving coorespondences from the CFO of this company and have recieved letters via email no voice conversations- I feel threatend by this company and my position is in jeapordy because of my ill child? I do not know where to go or what to do- this is the livlihood of my family as this job provides all insurances. I do not feel safe or welcomed despite my attempts to return to work and was advised not to until further evaluations from medical facility..... and now they are trying to take my vacation hours.
I need help..... I think I need a lawyer for this situation as it progressively is getting worse.

 

[cbg]

1.) Does your employer have a minimum of 50 employees within a 75 mile radius of your location?
2.) Did you work a minimum of 1,250 hours in the last 12 months?
3.) How much time, total, for all illnesses, have you missed since coming to work there?

 

[dezomatic]

I am not eligible for FMLA... as I have researched this option- once I even mentioned I might need a leave is when I have started to receive emails from the CFO and letters re performance issues........ which I have never heard about before!

I have email upon email about praise of my performance- as I took sales up 25% over plan-

Yes I have worked over 1250 hours.

Days missed/ time lost according to their records- 27 days missed not including being late- ALL related to a complicated pregnancy/ a seriously ill child-
*this total does not include my maternity leave which was from 7/9- 9/15

 

[dezomatic]

I just had another evaluation from a Hospital diagnosing me with a panic disorder and mandating me to 1 month medical leave......... I fear for my job!!

 

[rmet4nzkx]

How did you determine you were not eligible for FMLA? You didn't answer the question about how many employees. How much vacation do you have and how much used? Since you are claiming panic disorder as work related, did you make a worker's comp claim. Is there any way to schedule appointments out of work hours or can your work hours be be moved to accommodate doctors appointments, without affecting your work? What is the nature of your childs illness, are they considered disabled?

 

[cbg]

So you've worked there for "over a year" which could be thirteen months or twenty three months, missed over two months while on maternity leave and have missed another twenty seven days over and above that? If you are correct that you are not eligible for FMLA, Regardless of whether or not you're eligible for FMLA, it's not only legal for them to fire you, I'm quite surprised that they've kept you on as long as they have.

Even if you were protected by FMLA, the maximum length of time that an employer is required to hold your job is 12 weeks. You claim not to be eligible for FMLA, but you have missed more than the 12 weeks total (your maternity leave counts - nothing in the law requires them to overlook maternity leave) which means that FMLA or no FMLA, they are within their rights to terminate you if you miss additional time. The fact that you have an ill child does not give you more rights than other employees who are required to be at work, and even if your panic disorder or your child's illness is found to qualify under the ADA (which has NOT been established) it has been found in a number of courts that allowing unlimited time off is NOT a reasonable accomodation.

How good you are at your job does not matter. I'm sure you're an excellent employee when you're there, but frequent absences CAN affect your job performance and your employer is not required to put up with it once FMLA is exhausted, and it is.

I'm afraid you're right to fear for your job. Regardless of whether you've been "mandated" another month's leave or not, your employer is not required to continue to hold your job open indefinitely regardless of how legitimate the medical leave. Sooner or later he's allow to cut you loose and hire someone who is able to come to work.

I'm sorry I can't give you the answer you want, but on the available facts I don't see that the employer will be breaking any laws if he fires you.

 

[Beth3]

cbg, the poster is in California. I know they have their own maternity/pregnancy leave act although I'm not familiar with the particulars other than that I believe it's considerably more generous than the FMLA. Might she qualify for maternity leave under that?

 

[cbg]

She would, but she had her pregnancy leave and is now missing time for her own panic disorder and a sick child, neither of which would fall under pregnancy/maternity leave. Plus, as far as I know the CA pregnancy leave runs concurrent with FMLA.

 

[rmet4nzkx]

Here are two links to California's own “California Family Rights Act”
http://www.dfeh.ca.gov/Statutes/cfra.asp

California Department of Fair Employment & Housing
... Web site at www.dfeh.ca.gov and click on “California Family Rights Act”. ... the California Family Rights Act / Family Medical Leave Act and Paid Family ...
http://www.dfeh.ca.gov/News/Bulletin-Paid Family Leave 12-31-03 web.htm

The second has a chart showing the differences between FMLA and CFRA.
Effective July 1, 2004, California workers may be able to take up to six (6) weeks of paid leave per year for the purpose of bonding with a new child by birth, adoption, or foster-care placement. Last year, legislation established the Family Temporary Disability Insurance (FTDI) program, officially known as the “Paid Family Leave (PFL)” insurance program, the first of its kind in the United States. The PFL program makes paid leave equally available to mothers and fathers. The program also provides paid leave for the care of a seriously ill child, spouse, domestic partner, or parent. The paid-leave insurance program applies to all employees who are covered by the State Disability Insurance (SDI) program. Under the new law, compensation for covered leave will be funded by employee contributions, which will be deposited into the Disability Fund and administered by California’s State Disability Insurance Program.



The statute specifically provides PFL leave must be taken concurrently with leave under the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). Attached is a comparison chart of the CFRA/FMLA (enforced by DFEH) and PFL for informational purposes only.



The Employment Development Department administers the Paid Family Leave program. Please contact EDD at (877) BE-THERE for details on the program or visit their Web site at www.edd.ca.gov



For more information on CFRA, please visit the “Statutes, Laws and FEHC Decisions” section on the DFEH Web site at www.dfeh.ca.gov and click on “California Family Rights Act”. To download and print the DFEH CFRA Fact Sheet, from the DFEH Home Page, click on “Publications”, click on “Employment Discrimination”, and then scroll down to “CFRA DFEH-188”. You may also call our toll-free statewide telephone number (800) 884-1694.

********************************************
SORRY THE CHART DOESN'T COME OUT HERE CORRECTLY
Comparison of Major Distinctions in the California Family Rights Act / Family Medical Leave Act and Paid Family Leave (PFL) also known as Family Temporary Disability Insurance (FTDI)

California Family Rights Act (CFRA) / Family Medical Leave Act (FMLA)

Paid Family Leave (PFL) or Family Temporary Disability Insurance (FTDI)

FMLA////Covered Employer 50 or more employees within a 75 mile radius
CFRA///One or more employees, subject to SDI

FMLA////Eligible Employee Must have worked for employer 12 months, and 1,250 hours in last 12-month period.
CFRA///There is no set number of hours worked required of employee; must contribute to SDI; waiting period of 7 days during which no benefits are available.

Amount of Leave / Paid Time Off

FMLA//12 weeks in a 12-month period (usually unpaid)
CFRA//6 weeks in a 12-month period (paid)

Reason for Leave / Paid Time Off

FMLA//Birth of employee’s own child, placement of child with employee for adoption or foster-care, or employee’s own serious health condition or serious health condition of child, parent or spouse of employee.

CFRA//To bond with employee’s own child or employee’s domestic partner’s child; or a child placed for adoption or foster-care with employee or employee’s domestic partner; seriously ill child, parent, spouse or domestic partner of employee.

Medical Certification Requirement

FMLA//Employee must notify employer within 30 days, or reasonable time under the circumstances, of need for CFRA leave; employer may require medical certification.

CFRA//Employee must file claim with EDD, including certification from family member’s medical doctor.

Leave Usage

For the birth of employee’s own child, placement of child with employee for adoption or foster-care, or serious health condition of child, parent or spouse of employee, an employer may require employee to use vacation leave or other paid leave credit.

For the employee’s own serious health condition, the employer may require the employee (or the employee may elect) to use sick leave.

PFL must be taken concurrently with leave taken under FMLA and CFRA.

Employer may require employee to take up to two (2) weeks earned, but unused, vacation prior to the employee’s initial receipt of PFL benefits.

If employee has less than one week of unused vacation, that leave shall be applied to the waiting period.

Employee Reinstatement Rights

Employer must guarantee employee reinstatement to same or comparable position following CFRA leave.

Employer not required to hold job for employee on PFL; however, if employee is taking CFRA leave concurrently with PFL, employee has reinstatement rights under CFRA / FMLA.

Relationship to Current Leave Laws


Unless employee is disabled by pregnancy, CFRA / FMLA run concurrently.


For eligible employees, PFL runs concurrently with CFRA / FMLA.

Note: This chart is for informational purposes only.

· For more information about CFRA, visit the DFEH Web site or contact our Communications Center toll free at 1-800-884-1684.

· For questions about PFL, visit the Employment Development Department’s Web site at www.edd.ca.gov or call 1-877-BE-THERE.

 

[Katy W.]

Dezo, I reread your post because I thought I must have missed something, but sure enough, it wasn't there. You are basing your belief that your job is in danger on:

I am only recieving coorespondences from the CFO of this company and have recieved letters via email no voice conversations- I feel threatend by this company and my position is in jeapordy because of my ill child? I do not know where to go or what to do- this is the livlihood of my family as this job provides all insurances. I do not feel safe or welcomed

I don't see any indication that they want to fire you. I do see an indication that you may be reacting in a hysterical manner which has put them on guard and they are documenting everything, which I would do too.

Then you go on to say that they are trying to take your vacation away.
Listen, if you care about this job, let them use your vacation to cover some of your absences! Why wouldn't you?

The girls (CBG,Beth,rmet) know a lot about FMLA and all that so listen to them. My advice is to chill out a little and consider having a conversation with your boss along the lines of, "I don't want to lose my job; what can I do to become a productive employee, yada yada." If you don't need the whole month for your mental problem don't take it. There is such a thing as milking the cow dry.

In a perfect world an employer would make you feel safe and welcomed when you come back from medical leave - guess what. I bet you know what I'm going to say.

 

[dezomatic]

I apologize.... to answer the question re: 50+ employees- No - this compony does not have that total- it is less.

rmet4nzkx- THANK YOU FOR ALL THE INFORMATION- I will research and figure my options.
Thank you everyone for your feedback.

Someone mentioned I might be hysterical- I can only say you might be slightly hysterical when your livlihood is being jeapordized because you simply need to take care of your very ill child- and you had to barrel through a horrific pregnancy.
I have poured my heart an soul into this job- I loved this job! now nobody talks to me from the office I am based out of? I work from home to the best of my ability- I can access my work emails from home... I address what I can.
Here are some of the questions I am getting asked from the CFO- how would you interpret them?

*As you’re aware "X Inc." has no sick leave policy for exempt employees but you are entitled to 10 days of vacation for the year.

*Have you been diagnosed with a medical condition that prevents you from working, or that will impair your ability to do your job? If so can you provide documentation and let us know how long and what accommodations you are requesting?

* Will the current condition of your child prevent you from returning to work, or that will impair your ability to do your job? If so, how long and what kind of accommodation are you requesting?

Prior to my leave and prior to my child being ill there are addition circumstances that I think play a factor- My boss used to be my position- he hand picked all my team- I would constantly be undermined- my decisions overturned and back door meetings would take place with the team I needed to manage. I had started to take a stance- he obviously did not like this.... as now I feel some of these current issues are being used as a scapegoat-
I can tell you there are other employees in mangament that have worse attendance than me and did not have a child or any medical conditions.... there is a sense of discrimination here. I even contacted the head-hunter that found me this position- she told me that the turn over in this position is based on the control issue my boss has- 4+ individuals in 2 years.... I am the longest and best producing.
If I am terminated...which I believe that is exactly what this company is trying to do to me... and if it is labeled gross misconduct- is that legal?

 

[Beth3]

Here are some of the questions I am getting asked from the CFO- how would you interpret them?

*As you’re aware "X Inc." has no sick leave policy for exempt employees but you are entitled to 10 days of vacation for the year.

*Have you been diagnosed with a medical condition that prevents you from working, or that will impair your ability to do your job? If so can you provide documentation and let us know how long and what accommodations you are requesting?

* Will the current condition of your child prevent you from returning to work, or that will impair your ability to do your job? If so, how long and what kind of accommodation are you requesting?

Your employer is asking very legitimate questions and attempting to ascertain what their legal obligations are under the ADA (if any) and whether your frequent absences are likely to continue. I'd be asking the same questions. Information gathering does not mean they're planning on terminating you.

If I am terminated...which I believe that is exactly what this company is trying to do to me... and if it is labeled gross misconduct- is that legal? Is what legal? Terminating you or labeling it gross misconduct? I doubt they'd do the latter as labeling a term "gross misconduct" is generally reserved for serious offenses - theft, violence, insubordination, etc. but they can call it gross misconduct if they wish to. That doesn't mean you'll necesarily be ineligible for unemployment benefits if that's a concern.

Based on what you've written, yes, it will be legal if your employer terminates you. The FMLA doesn't appy and your employer has inquired about reasonable accommodations.

 

[rmet4nzkx]

It sounds as if they are trying to work with you, check out the CFRA also ADA re accommodations for disabled dependents, and worker's comp, but you do have to calm down and do your research. If you can work out accommodations that may allow you to keep your job, that is why I asked some of the quesitons I asked. You are overreacitng, the word "accommodations" is most likely related to ADA law.