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Going to be fired for being ill, refused short-term disability paperwork. Options?

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borla

Junior Member
What is the name of your state?
Arizona

Not sure where to start, I guess with my initial leave. I was hired in October of 2003, in Febuary of 2004 I took FMLA to have my daughter. I was off on FMLA according to my employers records from 2/16-5/10, interesting thing about that is that my daughter was not born until 2/18. I did, however, miss work on 2/16 due to a death in the family. Then on October 26 of 2004 I had to have surgery for Cervical Cancer, this was to be an outpatient surgery with me only needing a few days off. However, due to complications I was unable to return to work for a couple of weeks. Initially this was listed as me taking two days off that week and the way I was scheduled I had 10 days off in a row, so was not due back to work until November 2. However, I was unable to return to work until November 8. I am currently looking for a copy of my schedule to confirm this, however, I believe I was not scheduled to work that week until November 12. My employer insisted that I fill out FMLA paperwork for this leave and has my leave dates listed as October 25 (which I was not scheduled to work on) until November 12 (but I was released to go back to work November 8, just was not scheduled until November 12). Concurrent with my surgery I became very ill with constant diarrhea and vomiting. I did return to work on November 12 as scheduled, however, have continued to be very ill and under a doctors care with unfortunately frequent lost work days. I was diagnosed with Giardia and so far physcian's care has not resolved the problem. Due to the frequent call-in's, my physician and I discussed taking short-term disability until the issue was resolved. I called my employer and discussed this with them and requested that they fax me the paperwork for short-term disability which I had been paying into since I started my job. The short-term disability requires that I be an employee for 1 year and that the issue is not a pre-existing condition. I was also told they would send me FMLA paperwork with the disability paperwork, however, the fax never came through. This was requested on December 29. I called them back on January 4 and asked that they refax the paperwork as I had not received it. At that time I was told that I had used all my FMLA and I had two options, to come back to work or take voluntary termination with eligibility for rehire, it was decided since I had a physician's appointment on January 5 that I would get back in touch with them after the appointment to discuss which was a feasible option. I was told in the meantime that they would fax me the paperwork for short-term disability and for COBRA. My physician had an emergency that day and had to reschedule my appointment. On January 6 I called my employer again and asked about the paperwork as it still had not been received and informed them of the change in the doctor's appointment. At that time I was told that they did not fax the paperwork as I was being terminated if I did not return to work and since they did not know if I was returning they were not going to send me the short-term disability paperwork. As of this date, they have not terminated me, the last thing I was told is that my direct supervisor is out of town until January 11 and they will get back to me when she returns. My questions are these:

1. Can they refuse me that short-term disability paperwork legally? The way I see it is when I requested that paperwork I was still classified a fulltime employee with benefits as such.

2. Am I entitled to take the short-term disability even if I have used all my FMLA? I was not aware that it was required that you take FMLA to be qualified for short-term disability.

3. Can they refuse my short-term disability claim if they terminate me, as the illness began and paperwork was requested from them while I was still classified a fulltime employee with benefits?

4. Lastly, as part of my fulltime benefits I have long-term disability also, if they terminated me while/if I'm on short-term disability, does that mean if the illness persists that I cannot take long-term disability?

Any input on these questions would be greatly appreciated.

Thank you.
 


cbg

I'm a Northern Girl
Well, there's definitely something wrong here because if you were hired in October of 03, you were not eligible for FMLA until October of '04 and the time you took in February of 04 CANNOT be considered FMLA and CANNOT be subtracted from your FMLA allotment. However, that also means that this time is not protected under the law.

Please clarify something. Starting in October of 04, exactly how much time did you miss?
 

borla

Junior Member
oct time off

As a time reference, I am scheduled to work 3 12 hour shifts a week. Although I cannot without calling my employer be entirely sure I believe my time off went something like this:

I worked October 24, was scheduled off until November 2. Actually did not return to work until November 12. Worked November 12, and November 13, scheduled to work November 16 but requested to be put on call if not needed, which they put me on call and I was called in at midnight, so I worked half a shift that night. Believe I worked November 22, 23, 25, and 26. I believe I missed November 29 and November 30 although I believe one of those was another requested called off day. I worked December 2. I am not at all sure of the next two weeks however according to my paycheck stub I worked 4 shifts and was out 2 shifts. I was cancelled at my request December 21 I believe and worked December 23 and 24. I called in to work on December 28 and saw my physician on December 29 which is when he wrote a work excuse that said no work until further notice.

I'm sure there were scattered days in there I missed either cancelled, on-call, or called off as I was at that point scheduled 4 shifts one week and 3 shifts the next week. Althought the 4th shifts were extra. Along those lines they do have an attendance policy that states we may be terminated after 7 incidents, however, the policy also states we must have a written reprimand prior to being terminated which I have not received.

Your comment brought up another question also. If I was not eligible for FMLA for my daughter what recourse do they have for that period of time?

Thank you.
 

cbg

I'm a Northern Girl
I'll have to have a calendar in front of me for that. I was hoping for something simple like, a total of three weeks, or whatever.

It'll be Monday at the earliest before I can respond further. If anyone else wants to take over (Suzie? Beth?) feel free.
 

Beth3

Senior Member
cbg, you're on your own on this one. I started reading the initial post earlier but between the big block of text and all those dates and side issues, my brain started to hurt... :eek:
 
Ok...I'm not sure I get it all, but I'll say briefly that at the least, it doesn't look like you have exhausted all your FMLA time as you definitely don't appear to have been off a full 12 weeks since 10/24.

As for what they can "do" about having misclassified your FMLA/maternity leave, my gut reaction is "nothing much." I suppose, if they want to be jerks, they can go back and count all your time off as "absence" and fire you for excessive absenteeism. What they CANNOT do is continue to insist it's FMLA. It isn't - you weren't eligible.

You might try telling them you know your childbirth should not have counted as FMLA, as you weren't eligible as you hadn't worked there a year at the time. Then ask them for the FMLA paperwork for your current disability. If they continue to refuse, you might want to consider paying an attorney a couple hundred bucks to write them a nice "get with the program" letter. :D

That's the best I can do! Like Beth, my brain hurts!
 

borla

Junior Member
Thank you all for your help. The FMLA issue pretty much fixes the problem from the stand point of short-term disability. They will still fire me I'm sure but it gives me some time to get well before they can. I apologize for it being difficult to read and follow, I was not sure how much information you really needed to grasp the problem.
 

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