Hellobee Boards

Has the employee and Dr submitted the appropriate FMLA paperwork? Just being on STD doesn't count, the Dr. needs to do the FMLA paperwork. It sounds like maybe they just need to update it from the doctor so that they show they are still on leave.

@MrsYellowJacket: This doesn't sound legal. I would have family member call local bar association and ask if there's a hotline where he could speak with someone.

@MrsYellowJacket: My first reaction would be to try to act calmly and see if this is just a misunderstanding. Did the updated FMLA paperwork just get lost? How do you know this is the rebuttal to that? Because no, legally they can't just turn down a doctors note if you are covered by FMLA.

Oh, @Adira yes I may have missed the part about 12 weeks already having gone by. In that case yes it may be legal.

If its been 12 week then yes I would say it is legal to fire them.

Check and see if this would qualify as a ADA leave:
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If the employee's medical condition qualifies as a disability under the
ADA, you may have to allow additional leave beyond the 12 weeks
required by the FMLA, if the extension would constitute a reasonable
accommodation.

Remember, though, not all serious health conditions that trigger FMLA
coverage meet the disability definition. Under the ADA, a disability is
defined as a mental or physical impairment that substantially limits a
major life activity, and this definition has been interpreted to cover mainly
longer term, chronic medical conditions.

A reasonable accommodation is one that allows the employee to perform
the essential functions of the job without imposing an undue hardship on
the employer. The ADA does not place any specific time limit on the
amount of leave a disabled employee can take. As a general rule,
however, the leave cannot be indefinite.

Yea 12 weeks and thats about it. It doesn't sound like they are willing to bend or accommodate any further than they have to/already have.

Some of this could be determined by the STD.
For instance if it's work provided STD via the government, it could provide full coverage and protection during the time one is on STD (like FMLA) in terms of health benefits, retirement, and job protection.

For my government job, I have my STD kick in first, then I'm allowed to take my own annual leave and any annual leave that may be donated to me via a catastrophic loss collection, and then finally when I've exhausted that, I can invoke my FMLA rights. FMLA can run concurrently to other leaves but it does not have to if you have redundant coverage under other leave programs. For me, I didn't invoke my FMLA rights until 4 months into my maternity leave.

@MrsYellowJacket: does she have any sick leave or PTO she can use?

Like @gingerbebe: noted the Govt usually has pools of leave that have been donated and are used for these types of situations - something to look into!

Can they go to work in a wheel chair? Work from home? Work half days or some other reduced schedule? I'd have them talk directly to their boss and see if there's any accommodation they're willing to make.

I've seen my mom go through 2 hip replacements and a double knee replacement. She had to do a lot of therapy afterwards, but she probably could've sat at a desk, at least part of the day, 12 weeks after surgery. And those are MAJOR surgeries.

Sounds legal to me. Does she have PTO that can be used?

Is this a federal govt employee? It doesn't sound like it is federal bc they don't offer any sort of disability insurance and they also allow you to use LWOP while taking FMLA. If it is federal they usually have an option where employees can donate leave to a qualified employee. I've had a lot of people in my agency go on leave for longer than the 12 weeks, and I've never heard of them being treated this fairly. (They lose their benefits if it is LWOP, but not their jobs.)

I really hope the doctor can help! It makes me so angry that an injury that was in no way someone's own fault can essentially ruin their lives.

@MrsYellowJacket: Agreed with @yoursilverlining: I wouldn't resign. Let them terminate. Our company used to do this (before ADA expanded) and it was classified as a medical separation. And as a company we took the stance that we wouldn't fight unemployment for those employees. And it was also our stance that when the employee could work again, they were eligible for rehire.

So it is legal? Have you talked to a lawyer about this? Does the employer know that you are looking into finding a lawyer?