Concern

[Jankem]

My job closed due to a Covid-19 on March and they opened again in June. When they opened I asked for a medical leave because my doctor prohibited me to comeback to work due to my lupus and the medications that I take because I am in a high risk. The company that work with my leave sent me some paperwork for my doctor to filled in order to approve my leave. My doctor fille all the paperwork stating that I can comeback to work when all the Covid-19 gets down. The company sent me an email telling me that the doctor do not put an exact day for me to comeback to work. I asked my doctor and he sent the paperworks again with a date but I never heard nothing back about my leave. I sent a message to the company and do not received any answer. I texted one of my bosses and she never answer me either. So yesterday I found out that my employer take me out of the system and I lost my job. I would like to know if I can take any action against my employer for that.

 

[Just Blue]

My job closed due to a Covid-19 on March and they opened again in June. When they opened I asked for a medical leave because my doctor prohibited me to comeback to work due to my lupus and the medications that I take because I am in a high risk. The company that work with my leave sent me some paperwork for my doctor to filled in order to approve my leave. My doctor fille all the paperwork stating that I can comeback to work when all the Covid-19 gets down. The company sent me an email telling me that the doctor do not put an exact day for me to comeback to work. I asked my doctor and he sent the paperworks again with a date but I never heard nothing back about my leave. I sent a message to the company and do not received any answer. I texted one of my bosses and she never answer me either. So yesterday I found out that my employer take me out of the system and I lost my job. I would like to know if I can take any action against my employer for that.

What state?

 

[Jankem]

Pennsylvania

 

[Just Blue]

Thanks...I will tag some of the experts in this area.


@cbg @commentator @eerelations @PayrollHRGuy

 

[cbg]

This is going to be a bit tricky because of the closure. However, let's start with:

How many employees does your employer have within 75 miles of your location?
How long have you worked for this employer?
In the 12 months immediately your request for a leave, did you work a minimum of 1,250 hours for this employer?
Does your employer know about your lupus?
What date did the doctor eventually put on the paperwork?
Do you know for certain that you have been terminated, as opposed to putting you on the leave that you requested?

 

[Jankem]

1.I do not know how many employees they have in the store right now.
2. I’ll be working for 5 years with the company.
3. Yes I worked more than 1,250 hours
4. Yes they knew about all my health conditions included lupus.
5. He put July 31 then He said on that day he would ask for an extension. Because He do not know exactly when all this about Covid-19 is going to get down or end.
6. I worked for ross store and a co-worker check the schedule paper in which appear every employee and my name is not there anymore. And also My husband went to the store and they told him I am not in the system anymore.

 

[cbg]

The number of employees is important. If you do not know the exact number, can you say if it is over or under 50?

 

[Jankem]

Over 50

 

[Zigner]

The OP was not let go due to a medical condition. The OP was let go due to the fear of getting sick. I'm not sure the COBRA would apply...what are your thoughts?

 

[Taxing Matters]

The OP was not let go due to a medical condition. The OP was let go due to the fear of getting sick. I'm not sure the COBRA would apply...what are your thoughts?

COBRA is a law that provides for an employee to continue on the employer's medical insurance plan for a period of time after the employee is separated from the employer. Assuming the other requirements are met, the employee qualifies for COBRA coverage if the termination from service was for any reason other than gross misconduct. So the OP may well be entitled to COBRA coverage here as he/she was not terminated for gross misconduct. But the OP isn't asking anything about COBRA or continuing employer provided insurance.

cbg's questions were getting at whether the OP might have qualified for leave under FMLA. Perhaps that's what you meant to reference rather than COBRA. The qualifying reasons for taking leave under FMLA are discussed in the U.S. Department of Labor (DOL) fact sheet 28F. The DOL has addressed the issue of FMLA and staying home from work to avoid getting exposed to covid-19 in a covid-19 FAQ page as follows:

The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with COVID-19 where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA. Employers should encourage employees who are ill with COVID-19 or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.​

Based on that, it would appear that the OP would not have qualified for FMLA leave simply because he/she is at greater risk for getting covid-19 and wanted to avoid risk of exposure to it at work.

So, unless the OP is protected by some Pennsylvania law that prevents termination of an employee in this circumstance (and I'm not aware of one) I don't see any recourse against the employer for wrongful termination. That said, the OP ought to see an employment law attorney in his state for advice since state actions on covid-19 are all over the place and keep changing. Most attorneys will provide a free initial consultation.

 

[cbg]

Where I work FMLA is handled by a different area of the office; they're not even in the same building so I wasn't up to speed on it.I thought it wouldn't hurt to get the info while I did the research. Thank you, Tax, for the information. My primary concern had to do with the fact that the OP is high risk, but Tax's information makes it clear that FMLA would not apply. I would therefore agree that this is not a wrongful term. I've had employees in PA and am likewise not aware of anything that would protect the OP, unless something has been recently initiated specifically because of covid.

However, the co-worker's assessment is not necessarily accurate; why would they put you on the schedule if you were on a leave of absence? And the legally may not give any information out to your husband without your written authorization. So I'm not as certain as you are that you've been fired.

 

[Zigner]

COBRA is a law that provides for an employee to continue on the employer's medical insurance plan for a period of time after the employee is separated from the employer. Assuming the other requirements are met, the employee qualifies for COBRA coverage if the termination from service was for any reason other than gross misconduct. So the OP may well be entitled to COBRA coverage here as he/she was not terminated for gross misconduct. But the OP isn't asking anything about COBRA or continuing employer provided insurance.

cbg's questions were getting at whether the OP might have qualified for leave under FMLA. Perhaps that's what you meant to reference rather than COBRA. The qualifying reasons for taking leave under FMLA are discussed in the U.S. Department of Labor (DOL) fact sheet 28F. The DOL has addressed the issue of FMLA and staying home from work to avoid getting exposed to covid-19 in a covid-19 FAQ page as follows:

The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with COVID-19 where complications arise, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA. Employers should encourage employees who are ill with COVID-19 or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.​

Based on that, it would appear that the OP would not have qualified for FMLA leave simply because he/she is at greater risk for getting covid-19 and wanted to avoid risk of exposure to it at work.

So, unless the OP is protected by some Pennsylvania law that prevents termination of an employee in this circumstance (and I'm not aware of one) I don't see any recourse against the employer for wrongful termination. That said, the OP ought to see an employment law attorney in his state for advice since state actions on covid-19 are all over the place and keep changing. Most attorneys will provide a free initial consultation.

I was speaking of FMLA - thanks for the correction and excellent (as usual) presentation of information on the topic

 

[Zigner]

Hi Jankem. Sorry to hear about your situations. Ask your boss if it is possible to work from home. Since the Covid-19 is still on going.

The OP has already been terminated.
Also, the OP worked in retail.