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Need advice ASAP - FMLA & possible termination

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TxToy

Junior Member
What is the name of your state?What is the name of your state? Texas

My girlfriend has been out for 2 months for medical reasons under the FMLA. She was scheduled to return to work last Monday, Aug 15. On Monday, Aug 8 she had an appt scheduled with her doctor to get the certification to return to work. However, she woke up Monday morning, Aug 8, to find her house had been broken into during the night, her purse was stolen along with her car keys and her car. She had no car to get to her appt and spent the day with detectives and on the phone with her insurance company. So she could not get to the doctor to get the certification. She attempted to make another appt but her doctor went on vacation out of the country and is still out.

On Mon the 15th, she returned to work without the cert and was sent home. On Tuesday, Aug 16th she received a couriered letter from her employer stating that unless she they received the cert by 5pm today (Aug 17) they will have considered her to have voluntary given up employment. She contacted the doctor's office and they said that only her doctor (who is vacationing out of country) can issue the cert.

I told her she needs to take a letter to her employer today stating she is NOT voluntarily giving up employment and will get the cert as soon as she possibly can and have a company representative sign that they received the letter.

I've read the USDL website and it says under certain circumstances the employer my deny reinstatement if the employee fails to provide cert, or may delay reinstatement. She is trying to get the cert but its out of her control. Any advice? Can her employer do that?

Thanks!
 


TxToy

Junior Member
Update

Yesterday she faxed and couriered a letter to her employer stating she was not voluntarily terminating her employment and confirmed receipt with the HR person. The doctor's office also faxed over a statement saying she was ok to return to work but it was signed by someone other than her doctor (because she's out of the country) so her employer wouldn't accept it.

She was told not to come back to work. So they basically fired her while still on FMLA.
 

cbg

I'm a Northern Girl
Firing someone while they're on FMLA is not illegal per se. What's illegal is terming someone BECAUSE they applied for FMLA. That is not the case here.

She could have called the doctor on the day of her appointment and asked him to fax or mail a certificate since she could not get there. Her employer is not required to either allow her to return to work without a return to work notice or to extend her time off until her doctor returns to the US.
 

Beth3

Senior Member
So her doctor left the country and didn't make arrangements for another doctor to "cover" for him while he is gone??? That's certainly highly unusual. Doctors usually have made reciprocal arrangements with one or two other physicians for their offices to refer patients to one another when each is on vacation, or at a conference, and so on. They don't just leave their patients high and dry.
 

TxToy

Junior Member
Thanks for the replys. Its not a medical doctor which is why there wasn't a back-up. I suppose she could have asked her doctor on the day of the appt to fax something over, but I doubt that crossed her mind. She was a bit frazzled seeing how someone was in her house, in her bedroom, while she and her daughters were sleeping, then stole some things among them being her car.

She did her best to get what they needed so she could return to work. I'm not sure if her employer broke any laws, but they sure have been jerks about it.

Should she file a complaint with the DOL or is that a waste of time?

Thanks.
 

cbg

I'm a Northern Girl
Since they do not appear to have broken any laws, it would probably be a waste of time. I understand that she has tried to comply with the requirements but that does not change the fact that she has not done so.

And even an osteopath or a chiropractor still should be leaving a backup for their patients - what if one of them had an emergency?

(If it was not a medical doctor, a D.O. or a chiropractor, your GF is darned lucky they let her take two months off at all since they are not required to accept certification from anyone else.)
 

TxToy

Junior Member
By medical I thought you meant the typical idea of a doctor. I don't know the doctor's certifications, but it was basically a shrink and she was out on medical leave for health reasons which is allowed by FMLA.

If her doctor had not yet issued a cert to go back to work, would that not mean she was still out on FMLA? She was out about 8 weeks getting therapy, not the full 12 weeks allowed by FMLA.
 

cbg

I'm a Northern Girl
A shrink is still a medical doctor.He or she still has MD after his/her name. In fact, I'm even MORE surprised that a psychiatrist did not leave any back up physician.

The difference here is that the doctor did not issue a return to work cert due to a technical glitch; NOT because he does not feel she is ready to return to work. She was approved leave until 8-15. Since the doctor was prepared to issue her a return to work cert on 8-8, she is no longer entitled to FMLA.
 

TxToy

Junior Member
Her employer DID receive notice that she was ok to return to work by the deadline they gave her, they just didn't like who signed it and would not accept it. They refused to let her work even though they had a cert in hand. Maybe they are being jerks, but to me it appears that although its not how everything was "supposed" to have gone, my GF did meet their requirements to come back to work and they wouldn't let her.

I think I'm going to give her the DOL phone number and let her discuss it with them to determine if there were any violations. It all seems very shady to me. It wouldn't be the first time the company had been sued for this type of treatment of their employees.

Thank you all for your time and comments.
 

TxToy

Junior Member
She called to apply for unemployment this morning. After explaining the circumstances surrounding her application, they referred her to the DOL. She gave the DOL all the information and explained exactly what happened and they suspect her employer is in voilation of the FMLA and will be in contact with her.
 

cbg

I'm a Northern Girl
That's fine. I don't believe anyone said that no violation took place; only that a violation is not evident from the facts presented here.
 

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