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I'm being threatened with termination for not returning to work although my dr has me out with a note - Pennsylvania

by Smith
(PA)

I was in a car accident 12 days ago. I am being threatened that if I don't come back I will be put to part time, so I came back for a day and it was too much and now they are saying if i don't come in i will be fired, Mind you- I AM out on a drs note until he releases me. Can they fire me legally???



Hi Smith,

First I need to ask you if your employer is required to adhere to the Family Medical Leave Act. Does your employer have at least 50 employees within 75 miles of the worksite and have you worked for this employer at least 12 months? If so, they are a covered employer and you need to read this page at the DOL

FML can protect your job for up to twelve weeks and if an employer fires you while on FML it opens up the possibility of other action by you .. let alone unemployment benefits when you become able and available again.

Otherwise, if they aren't a covered employer under this act and they fire you for not coming back to work .. even though you have not been released by your physician to do so .. you will be able to collect unemployment when you become able and available for work.

I might add, I think the employer is violating some sort of law by requiring you to get back to work without a doctor's release. At the very least this opens them up to some type of liability.

If a doctor's note doesn't prohibit you from work, but only restrict your activity you would then also be eligible to receive unemployment if the employer cannot accommodate the restrictions. Of course a medical restriction does not give you a pass from work if the employer can accommodate.

Since your situation sounds a bit like there might be some harassment going on, I suggest you check out this website which focuses on workplace harassment. It has a fairly active forum also.

Comments for I'm being threatened with termination for not returning to work although my dr has me out with a note - Pennsylvania

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Job abandonment
by: Anonymous

My previous Employer sent me a letter stating that I abandoned my job while I was out on medical leave. My wife and I were in constant communication regarding my two hospital admittance, two surgeries and discharges. We spoke to several members of the management team in regards to my absence and left messages on the voicemails when directed too by members of management to correct department heads. The reason they are stating not to approve the claim is different as well as in accurate. The job's employee handbook and policy states that 3 3 3 days of a no call no show is job abandonment. Please see below for dates of hospital admittance, doctors return to work notice date as well as discharge date. You will also see a letter dated with the reason for termination from on November 10, 201
stating that they haven't heard or got a return phone call from me since 9/14/16 which is 41 day after I receive the letter and it is untrue. I called them on 9/15/2016 and told them I was at the hospital and admitted. I had one suregery then and I had to have an additional surgery all while still in the hospital 6 days layet where which I had to have an amputation of one of my toes on my right foot and didn't get discharge from the hospital until a few weeks after 10/3rd where I was recieving home healthcare provided by nurses..



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returning to work before my Dr clears me
by: Anonymous

I need help I had a hsyterectomy on July 11 Andy papers I filed out for fmla I put to return on September 5 because Jess not sure but my job told me to return on September 4 and my Dr has not cleared me yet and he also told me not to lift over 20 pounds and I work at a group home lifting patient over 100 pounds and my dr.appt is on September 10 what do I do do I return to work I .still hurting some from.the surgery if I start hurting worse after returns.G to work.what do.uk.do and can I sue them please help any body I need answers please help and I know I may have misspelled a word or 2

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Search phrase
by: Anonymous

Hello. The search phrase that lead me to your site, by the way, was FMLA- employee terminated- rights violated, I think. Just in case you were trying to figure out how it came to be that I was at your site. I geuss it was your FMLA advice or answer that pulled in the search engine. I was looking for another take on an FMLA case where the employee was fired after requesting(but being denied)FMLA. Yeah I agree with you the Govt is in businees to stay in business, and watch the (their?) business of Govt grow. The thing is that the people who work for the govt are usually not the best in their field or they would go somewhere else and earn what they are worth. Therefore they are content little mice and earn their govt "cheese" but have their safety net in the govt job. Hey someone has to do the job, do you think the most competent will work for little pay? I worked for several major cities in my area while cutting my teeth. I love to make fools out of them when they believe that I should be intimidated because they are the "govt." It is just that attitude that makes me bring the fight to them.


Are you an employment attorney?

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Rights of Key employee
by: Anonymous

Here you go Chris. 29 CFR 825.219 (FMLA) - Rights of a key employee.


I very pleased the earlier tension has diminished. I appreciate the responses.

I doubt many "key" employees show up here, but if they do .. we're ready. You are dead on about protecting yourself before becoming unemployed.

Most American workers are not "key" employees, they are of the throw away variety, even after years of devoted service to one employer.

I spoke with someone today who said a couple things about ethics. We had been discussing her "forced resignation" She made the distinction between corporate ethics and personal ethics.

I asked why she hadn't protected herself better. She said because a thief can see another thief.

Most American workers know that the laws which have an effect on their rights with regard to employment are complex ..

Most American workers that do know their rights are afraid to assert their rights.

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Key employee
by: Anonymous

"Key employee" is usually someone that is an Executive or upper management, and the CO. can not effectively "function" without them at the helm. Sometimes they work under a contract. They can be exempt from certain protections as can some govt employees (I guess an extreme example could be a white-house staffer). Meaning it can be argued that it is too injurious to the day to day operations to allow them the FMLA protections. Its full description can be found at the DOL web site or just search under the 29cfr825 subpart b. If you cant find it let me know and Ill dig it up and quote you the specifics. FMLA is a complex and interesting part of employment law. It is constantly changing and being challenged. It does have its constants though and everyone needs to be made aware of their RIGHTS. Many unscrupulous employers would have you play their games rather than (they) abide by the law. I would encourage everyone to visit the DOL wage and hour divisions site. Learn your rights. Then go to your States unemployment web site and find the statutes regarding the differences between constructive discharge, wrongful or retaliatory discharge, and quit with and without good cause attributable to the employer. Learn about hostile work environment, harassment, discrimination and the likes. The time to learn is BEFORE you end up unemployed.

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What did you mean by "key employee?
by: Chris

You wrote : "It is a shame that an employee (who is not a key employee) is treated like this".

What does that mean?

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One more thought on the case
by: Anonymous

I believe that this person could quit and argue that there was good cause attributable to the employer to quit(it was documented that they had to leave work after attempting to do the work. Go back and have the doctor describe specifically what you can and/or can not do for the employer. This shows that you have at least attempted to retain the employment). There is a strong argument there if you then still are not able to do their job. Also though, if the person is fired for not being able to perform then that person should be allowed their UE benefits. Do we agree on this? I believe that this is really the crux of the question. May be inquirer needed to state what it was they were wanting to ultimately accomplish, ie. a wrongful termination suit, stay home longer or get UE.It is a shame that an employee (who is not a key employee) is treated like this.



Hi again,
We agree in theory .. but I wonder if the inquirer wanted to quit? Keeping a weekly paycheck right now is what most people are concerned with. They stated they tried to come back despite the doctor order because they had been threatened with part-time employment. When they couldn't make it through the day .. the employer threatened them with termination. Sounds like they needed the job to me.

They did ask though if it was legal for an employer to fire them under these conditions. I guess I did answer the question with a lot of reference to FMLA and I believe I did so because FMLA violations (I didn't assume a permanent disability) are what I believe would make a termination for refusing to work while off under doctors orders .. illegal.

Do you agree that without FMLA there is no job protection for this person?

I really do try to stick to unemployment. When someone raises an issue I think they would be well advised to talk to an attorney about .. I tell them so.

I think we have different perspectives. I don't know who you are and can only guess at your occupation:), but I do know what search phrases bring people to this website .. they want to know if, when, how, why .. something about unemployment benefits.

They lack understanding .. some even think they pay for the right to collect unemployment.

If they are looking for information about wrongful terminations they aren't ending up here .. at least on purpose.

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This might be of use to you
by: Anonymous

Hello again. I thought that maybe these case precidents might help you. CNW Foods v Davidson(Mo. case 2006), and Hutchins or (Hutchens) v Board of Review (New Jersey I believe).In the CNW v Davidson case the court rejected as spurious the notion that the employer could ignore the doctor (and ignore FMLA) and simply order the employee back to work (in violation of the Federal laws), or terminate him, and then claim thru the UE process that he was ineligible because he had "refused" to work. Go read it, it is good to know. In the Hutchens case, the employee quit to tend to her ailing parents. The employer knew this and still did not offer her FMLA even though she was otherwise eligible and qualified for it. (She applied for UE and was denied or at least challenged.) She later learned this and appealed (after a denial of benefits) and won. "If there are any doubts or ambiguities about the FMLA it is the EMPLOYERS responsibilty to inquire further". They also have to list "at least one reason why FMLA is being denied". One other case worth mentioning is the Ragsdale v Wolverine Shoe Co. One must study this case in the event that a persons leave has to extend beyond the 12 weeks of FMLA. It is a good read also. Take care.

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I do realize that Benefits are viewed more stingily nowadays
by: Chris

I positively agree with you that unemployment departments across the country are tending toward stingy. I keep an eye on recipiency rates and 2008's alarmed me.

I feel very strongly and have very strong opinions as a "non-attorney" about why people don't get unemployment.

I do not think I missed your point in your first post and I do not think I castigated you, but if I did, I apologize.

I simply wanted you to explain why you thought the information I gave was incorrect. I do refer people including this person to other websites, but let's face it .. if all a person is worried about is how to pay the rent, buy the groceries, and pay for doctor visits for their kids .. can they afford an attorney?

In addition, it's not just a stingy unemployment department in play here .. it's employers trying to reduce cost in any way possible.

We are a nation of wage slaves with little protection from a savvy employer and their "LEGAL HELP", except for what we can do for ourselves.

I understand that employers try to get out of paying for unemployment. I understand that just because an employer insist that they have offered a reasonable accommodation .. doesn't mean that it is.

But I also know that if an unemployment claimant refused one of those offers, they are in danger of being denied benefits .. because a common employer response to someone who has filed for unemployment after a refusal is:

The employer was willing to make accommodations, but the claimant voluntarily quit when they refused.

I do not want people to throw their hands in the air and give up. I want them to fight for benefits, but I want them to be able to fight so they can win.

I welcome anyone "willing to explain" anything they believe I relayed incorrectly. I mean it .. enlighten us.





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The point I was addressing
by: Anonymous

"Of coarse a medical restriction does not give you a pass from work if the employer can accomodate". That is the statement that I was previously trying to address before being castigated for something that I did not do. Everything else aside, the FML can,(if you and the employer meet the requirements and YOU are eligible or otherwise qualified)provide some sort of a "pass" from work. The important thing to remember is that FMLA is usually going to be an unpaid leave(but it provides protections). The FMLA and ADA can be combined or entirely separate. AS to the original question asked, I believe that you are correct that the inquirer would be allowed their UE benefits. Be advised though that some States are being very stingy these days with the UE benefits. Some States are borrowing funds from the Feds and know that it will likely have to be repaid somehow. This seems to be leading to increased denials in UE benefits. I would postulate that they know the law of averages when it comes to people giving up on fighting for their claim. Some people are just not used to goining to bat against the State. So they will give up early in the process.

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Correction
by: Anonymous

I did not "assume facts not represented by the person who asked the question", as you have asserted. That is not a true, nor accurate statement. I was pointing out that since YOU were giving out the advice on FMLA, and THAT THIS WAS NOT THE QUESTION ASKED BY THE INDIVIDUAL at all, that I would try to correct you in your advice about the Family Medical Leave Act. So, had you stuck to the question posed to you instead of giving advice on an area of law that you do not practice in (oh wait, you ARE NOT PRACTICING AT ALL, NOR ARE YOU AN ATTORNEY) then I would not have had to direct you, the non attorney, to the applicable laws. Now would I? Before you try to sound post-secondary educated with some illustrious (distinguished) statement that is incorrect, please make sure that your STATEMENTS(AND FACTS)ARE ACCURATE. NOW, LETS BE FRIENDS.




Illustrious? Distinguished? Wow, I had no idea.

Doesn't the question of whether they can fire "legally" depend on the FMLA?


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"Light duty" is a reasonable accomodation
by: Anonymous

Okay let me direct your attention to 29cfr825.207 paragraph (e). I hope this helps.

Hi,

No, actually, it doesn't. Please enlighten us all with an explanation. I've provided a link to what you are referring and just so were clear, this is the question and the answer with which you have a problem:


I was in a car accident 12 days ago. I am being threatened that if I don't come back I will be put to part time, so I came back for a day and it was too much and now they are saying if i don't come in i will be fired, Mind you- I AM out on a drs note until he releases me. Can they fire me legally???


Hi Smith,

First I need to ask you if your employer is required to adhere to the Family Medical Leave Act. Does your employer have at least 50 employees within 75 miles of the worksite and have you worked for this employer at least 12 months? If so, they are a covered employer and you need to read this page at the DOL

FML can protect your job for up to twelve weeks and if an employer fires you while on FML it opens up the possibility of other action by you .. let alone unemployment benefits when you become able and available again.

Otherwise, if they aren't a covered employer under this act and they fire you for not coming back to work .. even though you have not been released by your physician to do so .. you will be able to collect unemployment when you become able and available for work.

I might add, I think the employer is violating some sort of law by requiring you to get back to work without a doctor's release. At the very least this opens them up to some type of liability.

If a doctor's note doesn't prohibit you from work, but only restrict your activity you would then also be eligible to receive unemployment if the employer cannot accommodate the restrictions. Of course a medical restriction does not give you a pass from work if the employer can accommodate.


Again you have assumed that person is protected by FML.

I understand "light duty" and light duty is not a reasonable accommodation for someone who has doctor orders not to work until at such time as they are released by the doctor with restrictions upon what they can do at work.

Please explain to us all how the information I gave is incorrect.

Where in the FMLA does it say that a person not eligible for for FML is protected from being discharged if they are not covered under it or the ADA? Where did I say the employer could force someone back to work?

Define your objection to the answer I gave based upon the information provided in the question asked.

Share your knowledge, because I'm now having a hard time understanding what worker's comp has to do with it.


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Do you know the law?
by: Anonymous

Please be advised that you are giving out incorrect information in this case. Read 29cfr825.702, paragraph #4 (d)1. It states that an employer can not force someone back to work even with reasonable accomodations, in lieu of granting FMLA.



I'm always ready and willing to listen and learn.

Here is 29cfr825.702, paragraph #4 (d)1

(4) At the end of the FMLA leave entitlement, an employer is
required under FMLA to reinstate the employee in the same or an
equivalent position, with equivalent pay and benefits, to that which the
employee held when leave commenced. The employer's FMLA obligations
would be satisfied if the employer offered the employee an equivalent
full-time position. If the employee were unable to perform the essential
functions of that equivalent position even with reasonable
accommodation, because of a disability, the ADA may require the employer
to make a reasonable accommodation at that time by allowing the employee
to work part-time or by reassigning the employee to a vacant position,
barring undue hardship.
(d)(1) If FMLA entitles an employee to leave, an employer may not,
in lieu of FMLA leave entitlement, require an employee to take a job
with a reasonable accommodation. However, ADA may require that an
employer offer an employee the opportunity to take such a position. An
employer may not change the essential functions of the job in order to
deny FMLA leave. See Sec. 825.220(b).


It appears to me that the paragraph you refer to is talking about someone affected by the FMLA and the ADA. Or, those with a disability under the ADA and covered by the FMLA.

This person did not say that they had a disability covered under the ADA. Nor did they say their employer had enough employees to be covered under the FMLA .. They said they were in a car accident and their employer said that if they didn't ingnore doctor's order and come back to work part-time they would be fired and asked if it was illegal.

I told them I thought the employer might be doing something illegal and the website I referred them to is an employment lawyer's website .. so, it seems to me you have assumed facts not presented by the person who asked the question.

This website is about unemployment benefits. I make no assertion to be an expert in law. I say I know more about unemployment benefits than most American workers.

I would honestly like to have your reasoning as to the incorrectness of my response.



So, if you would be so kind as to elaborate, I'm sure we could all benefit.

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