My husband was terminated from his job - any advice

denistd said:

termination
OK lets see if we can work through this. I am a retired director of human resources that acted as a witness to congress for the FMLA in 1993 and 1994. I have over 20 years as a senior HR person. FMLA states that the "employee on leave must be returned to his/her position or one similar to it at the same rate of pay and benefits that were in place immediately before the leave" When the leave time is up that assurance goes away, although there is language that says leave should continue if the employee cannot return to work because the reason for original leave still exists. However all guarantees are forsaken at that point. To fire somebody for that reason is extremely risky and very cruel and I always made sure the leave was extended for employees of the firm I worked for. The ADA requires that a qualified employee must be reasonably accomodated to do the job, if they are qualified. Is cancer classified as a "disability"? depends on what the level of disability is. I had laryngeal cancer and do not regard myself as disabled. I don't think the ADA comes into play here. The company does not decide whether you get unemployment or not, that is up to the department of labor and industry of the state you live and work in. Even if you are getting LTD for two years you are certainly entitled to unemployment as your employer was the decision maker in whether you work or not. My opinion is you would get the unemployment compensation, your employer may contest it, but he would lose and rightly so. I would go talk to a labor lawyer on your husbands firing because thats what they did, THEY FIRED HIM FOR GETTING SICK, thats what I would do, get a lawyers perspective on it, but unemployment eligibility, absolutely. AS an aside. If your husband is indeed disabled you should apply for social security disability and medicaid. It takes two years for a person to qualify for SSD from the time of application, so check that out as well, good luck and God bless. Denis

Yankee617 said:

Ann,
I sympathize with you
Ann,

I sympathize with you and your husband. I took 6 months of short-term disability (full pay and benefits)
when I first was diagnosed and underwent similar treatment. They were about to put me on long-term
disability (LTD) after that, in which case they would terminate me, but I returned to work. I showed up
every day, as required, for 2 months but was pretty ineffective as I was too tired from the radiation.
Just as I was feeling better, my doctors decided I needed neck dissection surgery... so I took a month
of saved vacation time to cover my absence. Unfortunately, the surgery revealed more cancer and my
doctors decided I needed even more radiation. At this point I could no longer avoid LTD and my
employer terminated me the same day that LTD began; I consulted a lawyer and she advised me on
how best to protect myself - the ADA requires your employer to provide a reasonable accommodation
for a medical leave... but "reasonable" here means they do not have to hold the job open indefinitely;
you must give them a specific date by which you will return to work (and that date cannot be too far
in the future). I gave them such a date and, when my second radiation/recovery period was over,
I requested my job back... they offered me my job back, and I accepted, but then I had a recurrence
and withdrew my acceptance. Now I figure I'm on LTD indefinitely and money-be-damned... I'm
just hoping I'm still alive a year from now.

From what I've read of your situation, your employer is within their rights. They've offered you an
extra month as a reasonable accommodation... its up to you to decide whether to take it. His fatigue
will eventually lift... I know mine did... but it varies from one individual to another. In my opinion,
it helps if he started out in good physical condition and (even if he didn't) it helps if he pushes
himself to exercise... simply walking for 15 minutes/day is a good start.

If you have your doctor write a note saying he can return to work in a month, then your insurance
company can kick him off LTD benefits... but he can get his job back. Unfortunately, his employer
is now predisposed to dislike him and a few months of poor performance (due to continuing
fatigue) won't help. Its possible they'll find some other reason to terminate him six months
after his return; in that case he's out hunting for a job anyway, but has no income at all.

If you just stay with your LTD benefits, he should start looking for a new job ASAP. Eventually
the insurance company will tire of paying LTD benefits and decide that he is able to work. You
need to get out ahead of that and get a new job before the insurance company makes noises
about stopping benefits.

Most LTD policies have a clause intended to encourage people to return to work. Such a clause
says they'll pay partial (pro-rated) LTD benefits if you can return to work on a part-time basis.
I had planned to do this with my employer. In fact, the position they offered me was half-time
with the understanding that this would become full-time after 3-4 months... during this initial
period, my employer would provide half my salary and my insurance company would provide
half my LTD benefits. You might want to explore this possibility with your husband's employer;
ask them whether they will allow him to come back to work half-time on July 1st if the doctor
approves him for half-time work (say the doctor won't yet approve full-time work) with the
understanding that he'll return to full-time work by 1 October. But before you approach his
employer with this idea, contact his insurance company to see whether they'll continue paying
half his LTD benefits.

Good Luck