Wrongful termination

[justalayman]

I am not attacking you. I agree that at least mentioning FMLA to be thorough is a good idea. But I also wanted to address your statement that it wouldn't matter what the employer knew, as that could be potentially misleading to the OP and others. Disagreement on a point of substance is not, to my mind, an attack, even if you don't like that I disagree with you.

And that was all my intent was but somebody decided to run the train off the rails.

And the employer knew it was due to an illness. If the employer needed more info to determine if fmla applied the onus is upon them to take that step. The employer guessing it doesn’t apply when they don’t have enough info is the employers misdeed.

 

[Taxing Matters]

My kid is sick

That is enough info to allow the employer to believe it may be a covered leave. If the employer requires more or clarifying into, it is up to them to request it. The employee doesn’t have to dump a ton of documents on their desk and say: is this enough?

Right. But the employer doesn't have to stick forms in the hands of the employee or whatever when the employee says "I can't make it in today" thus giving the employer insufficient information that the FMLA might apply. The knowledge of the employer is relevant. What triggers the employer's part is the first step by the employee of providing at least enough info to know the FMLA is potentially at play.

 

[PayrollHRGuy]

Oh bs. Many people have no idea what fmla is let alone what it covers or when it applies.

I don't disagree with that. But people who have received 2 warnings for their attendance issues and are facing termination would certainly stress the seriousness of the illness to the employer in order to try and not get fired. Just as they would likely mention it here.

 

[justalayman]

I don't think

And again, we have no information about the op to be able to make any determination

Just stop and let the op address things as she sees fit.

Right. But the employer doesn't have to stick forms in the hands of the employee or whatever when the employee says "I can't make it in today" thus giving the employer insufficient information that the FMLA might apply. The knowledge of the employer is relevant. What triggers the employer's part is the first step by the employee of providing at least enough info to know the FMLA is potentially at play.

No they don’t have to shove forms but they do have the obligation of inquiring if they believe it may be covered or to shove the forms into the employees hands.

As far as we know the op called to inform the employer she was taking the day off due to her child’s illness. If she said more or less could change the employers obligation but at this point the employer knows fmla may apply if it is a chronic illness. It would be their obligation to ask enough to make a reasonable determination on fmla.


Regardless, if it was fmla covered, it will make a world of difference to the ops original question of UI regardless whether it was handled properly by the employer or not

 

[PayrollHRGuy]

Which is more common tummy aches or serious medical conditions?

Unless I see black and white stripes when I hear hooves I assume horses, not zebras.

 

[justalayman]

Which is more common tummy aches or serious medical conditions?

Unless I see black and white stripes when I hear hooves I assume horses, not zebras.

I’ve lived a zebra life. Most of my medical ailments have been zebras or at least very malformed horses.

 

[PayrollHRGuy]

Let me explain where I'm coming from on this. In the story below EE received, the week before, a notice that should she have any further attendance issues she would be fired. She works evenings and yesterday was payday. This happened yesterday.

EE calls supervisor at 10:15am to say she would not be at work that night because her child had the worst stomach ache. Since she was facing termination the call came to me...

Me: Hi EE how can I help you.
EE: I can't work tonight because my daughter is sick. She's been throwing up all night.
Me: Have you taken her to the doctor.
EE: No I don't have no money.
Me: (See's EE has EE+Child Blue Cross on my computer) You have medical insurance.
EE: I don't have the $10 copay.
Me: When the computer shows you picked up your $450.00 (weekly) check 15 minutes ago.
EE: [silence]
Me: EE You still there?
EE: You can't fire me if my child is throwing up.
Me: Yes I can and I will if you aren't at work at exactly 5:00 pm or you bring a note from the doctor before 5:00 today.
EE: OK OK hold on a second.

I you not this is the next thing I heard over the phone.

EE: [background] Do you want a liter or a fifth. [sound of cash register and drive up liquor store bell]

EE was terminated at 5:01 CDT.

If this weren't the kind of thing I have to deal with on a weekly basis I might not be so quick to assume but it is what it is.

 

[commentator]

Exactly! "Sick child" is such a dandy excuse. And then they used to come in to file a claim and say, "Well, can you believe it, that heartless bastard fired me! I tell ya, a poor single mom's just not got a chance!" when it was obvious a hard hangover was the worst health problem they were dealing with.

If this last absence was due to anything that FMLA is applied to, then probably the person would have a medical excuse to present with the claim. That the claim has already been denied once indicates to me that she very probably does not have a medical excuse. If the person is fired for an FMLA covered illness of a child or themselves, they're very much not likely to covered for unemployment insurance as they would not be, in this case, able, available and actively seeking other work. They're into something so serious that they are doing besides working. I myself have been on intermittent FMLA for the care of someone else, and there was a whale of a lot of medical paperwork that got submitted to get me approved. TN employers are pretty primitive sometimes, but most of them are fully versed in that federal government stuff that they have to do for their employees.

It's sometimes heartbreaking. I have seen people come out terminated after the 12 weeks of FMLA was up, still deeply involved in the care of a terminally ill family member, file a claim, and we had to tell them, come right back ---er, well, when you become available for work. And then you see people who are just not "work brickle" as the old folks used to say, who use "I was sick" or "my child was sick" or "my dog was sick" as an excuse. It all hinges on what happened at that very last absence.

 

[justalayman]

And here I thought I was the most closed minded cynical sob that walked the earth. Are you, payroll and commentator, this prejudiced about everything in life?

. If the person is fired for an FMLA covered illness of a child or themselves, they're very much not likely to covered for unemployment insurance as they would not be, in this case, able, available and actively seeking other work. The

Hmm, so if you have a child with chronic asthma that is under control for the most part but has a severe episode and requires contant care for a 24 hour period and control is reestsblished you think the parent wouldn’t be eligible for UI because they aren’t able and available for work? Why would you think they wouldn’t be able and available to accept work?

What about the parent of a child with cystic fibrosis that has a situation very similar to the asthmatic?


While FMLA covers absences from work due to an active illness, it also covers medical appointments to treat covered issues if the appointments cannot be scheduled around the work schedule.

 

[cbg]

JAL, I'm the one who's usually screaming "FMLA! FMLA" in the face of other posters (often including you) who are claiming the poster had no recourse. Do you really think that if I saw ANY indication that FMLA was likely to be a factor, I wouldn't have said so?

While the employer is responsible for initiating FMLA WHEN THEY HAVE REASON TO BELIEVE IT MIGHT APPLY, they are NOT required to assume every illness is FMLA - it is still the responsibility of the employee to provide enough information for them to make the call.

 

[justalayman]

Come on now, this was all simply based on being thorough. You are probably correct it does not apply but why y’all are so up in arms about me asking to make sure it doesn’t apply makes no sense.

Especially given we have absolutely no information about prior absences, it is impossible to know whether it applies or not.

 

[PayrollHRGuy]

Are you, payroll and commentator, this prejudiced about everything in life?

I can't speak for commentator but I have a very short fuse for people that don't want to work on Friday and those with attendance issues in general. They are the bane of my existence.

 

[eerelations]

I can't speak for commentator but I have a very short fuse for people that don't want to work on Friday and those with attendance issues in general. They are the bain of my existence.

bane

 

[cbg]

And I'm not sure you're doing the OP any favors by suggesting that she's actually got some recourse when there is no evidence whatsoever in what she's posted that she does.

 

[justalayman]

And I'm not sure you're doing the OP any favors by suggesting that she's actually got some recourse when there is no evidence whatsoever in what she's posted that she does.

Who suggested she has Or even hinted she has r course? I said I believe fmla should be ruled out before figuring out what to do with UI I asked if the fmla requirements apply and everybody else started running with it. If they don’t apply, they don’t apply and it’s done. If they do, then that topic can be taken further.


Everything in life has a process. It is usually best to eliminate possibilities or issues that can affect the ultimate outcome, especially if they would be a time saver or a winning lotto ticket, before advancing to the next step. Checking about fmla falls under that category in my mind so I asked the op to review the qualifications and respond. And if anybody hasn’t noticed I wrote this when initially addressing the op:


A minor illness is not considered a serious health condition.


I don’t see where I gave op any hope until I had to respond to all the posts questioning the value of verifying whether fmla was in play or not.