Employee Disability/FMLA/Not made aware of official policies

[pittguy578]

One thing I want to make clear is I am not looking to sue or get any money from this. I would like to keep working. I was just wondering how I should handle this particular situation-where my peformance has suffered as a result of an illness that I was not able to fully recover from by the time I had gone back to work. If I had known about their policy, I would have taken some extra time to make sure I was better and ready. This is not about money or trying to sue. I am hoping it never reaches that point. I am just not sure what I can do now to correct this performance issue which never should have happened in the first place.

 

[ecmst12]

Your recourse is nothing. IF you want to negotiate to take more time off now, you may be able to, if your doctor still thinks you should be certified unable to work. But barring that, you are back at work and that ship has sailed. You aren't entitled to any money or other considerations after the fact. There is nothing to correct. You can complain that you wish someone had told you that you didn't have to return at that time in order to keep your job...and that is the extent of it. If you want to get pushy with HR or your boss, you could find yourself unemployed for other reasons, because NO LAWS WERE BROKEN.

 

[mlane58]

One thing I want to make clear is I am not looking to sue or get any money from this.

Thats good because you don't have a case to sue for.

I would like to keep working. I was just wondering how I should handle this particular situation-where my peformance has suffered as a result of an illness that I was not able to fully recover from by the time I had gone back to work.

That's your doctor's fault for returning you to work when you were not fully recovered.

This is not about money or trying to sue. I am hoping it never reaches that point.

Well you will throwing money after bad, because again you don't have a case for anything.

I am just not sure what I can do now to correct this performance issue which never should have happened in the first place.

Again, your doctor is at fault here and maybe you need to take some of this blame since you knew you were not ready to return to work. Don't blame the employer for your lack of performance.

 

[pittguy578]

That's your doctor's fault for returning you to work when you were not fully recovered.

The doctor only returned me to work because I had advised them that I didn't really have a choice in the matter if I wanted to keep my job. It had been at my request. Really I was not in any shape to return, but I felt as if I had to at that point,

Well you will throwing money after bad, because again you don't have a case for anything.

So you are saying the company has no obligation to inform employees of policies if an employee specifically inquire about them?

Again, your doctor is at fault here and maybe you need to take some of this blame since you knew you were not ready to return to work. Don't blame the employer for your lack of performance

Doctor not at fault as stated above. I was not ready to return, but I returned at my request because my employer didn't inform me I was entitled to any additional time.

 

[mlane58]

There isn't a law out there that requires an employer to inform you or any other employee of what a policy says. Did you get a handbook when you were hired?

I beg to differ---your doctor is at fault here and isn't a very ethical one at that. By returning you to work when you were not fully recovered (regardless of what you wanted) put your health and safety at risk.

 

[swalsh411]

So you are saying the company has no obligation to inform employees of policies if an employee specifically inquire about them?

No. What you are being told is that you have nothing you can sue over. Just because there is an obligation to do something doesn't mean the failure to do that thing is actionable.

And besides, you haven't shown that you asked about needing more time off after FMLA has expired. Did you expect HR to read your mind? What they knew was as follows:

-You were cleared to return to work
-You were returning to work

Given those two facts how on earth could they be expected to know that what you really wanted was to not return to work.

As best I can tell, you think the following conversation should have taken place.

You - "I am cleared to return to work and will be returning to work"

HR - "Great. Would you like to know your options about not returning to work?"

 

[pittguy578]

There isn't a law out there that requires an employer to inform you or any other employee of what a policy says. Did you get a handbook when you were hired?

I beg to differ---your doctor is at fault here and isn't a very ethical one at that. By returning you to work when you were not fully recovered (regardless of what you wanted) put your health and safety at risk.

So let me just be clear-it is ethical for an HR department not to inform someone of a policy if it may be apply? It is not as if I was dealing with some random HR person in our own office regarding this matter. Our employer has a formal leave of abscence unit that specializes in these particular types of matters-it is all centralized. I had specifically asked about keeping job beyond FMLA time since I was not well-they did not give me a formal answer.

 

[Beth3]

[HR has] a greater duty to inform a line employee of all relevant employee policies/procedures.

Yes, I think they do too. But the only relevant issue here is that they have no legal duty to do so.

 

[Zigner]

So let me just be clear-it is ethical for an HR department not to inform someone of a policy if it may be apply? It is not as if I was dealing with some random HR person in our own office regarding this matter. Our employer has a formal leave of abscence unit that specializes in these particular types of matters-it is all centralized. I had specifically asked about keeping job beyond FMLA time since I was not well-they did not give me a formal answer.

You are on a LEGAL ADVICE FORUM. There is no legal obligation, no matter how much you stomp your feet and insist that there must be.

 

[swalsh411]

I had specifically asked about keeping job beyond FMLA time since I was not well-they did not give me a formal answer.

Even if there was a policy, and even if the HR person you spoke to knew about it, they would be under no legal duty to inform you of it. How many different times do you need to read this before you get it?

 

[pittguy578]

Even if there was a policy, and even if the HR person you spoke to knew about it, they would be under no legal duty to inform you of it. How many different times do you need to read this before you get it?

Can you please cite me some case law where this particular case has been hashed out? I have dealt with professional/employment liability cases/insurance policies. An HR representative aka expert always has the duty to inform employees of company policies, and especially if you ask specifically what your options are under company policy. They cannot lie to you/mislead you/withold information from you. Why even put an official policy in place if it doesn't really matter and a company can do what it wants? A company cannot be discriminatory in the way it enforces company policies. It cannot have one standard for one employee, and another standard for another employee, especially if there are formal guidelines in place.
PA is an at will state, but an employer can be sued for wrongful termination if they deviate from the steps they have outlined in a manual/handbook.

 

[cbg]

You are going at this from the wrong end.

It is not legal because there is a specific law that says it is legal. It is legal because there is no law that says it is illegal.

PA is an at will state, but an employer can be sued for wrongful termination if they deviate from the steps they have outlined in a manual/handbook.

Says who? And what difference does it make - you haven't been terminated.

 

[Zigner]

A company cannot be discriminatory in the way it enforces company policies.

Really? Ok, let's say that I have two employees...Paul and Rick. They both dress proper and have a great personality, which is good, since they are both salesmen. Both employees have the same length of service and, over the years, have averaged out at the same sales level.

About a 7 year ago, I happened to see Paul scratch his elbow while on the sales floor. There's no policy about that, but it has stuck in my mind because I HATE elbow scratchers.

Now, let's say that Paul and Rick have been carpooling. they arrive at the SAME time every day. Literally walking through the door together as if they were joined at the waist. But, for the last week, they have been 9 minutes late every day and have been written up by me with the exact language. The final write-up states that they will be terminated if this occurs again. Well, here they come, 9 minutes late again. Company policy is clear. They've both received the exact warnings. They're both in the SAME position. Unfortunately, I can't fire them BOTH, otherwise I have no more salesmen. So, I guess I'm going to have to be discriminatory and fire Paul, since he scratched his elbow 7 years ago.

So, tell me, do you think that Paul has any case against me/the company for wrongful termination? It's a rhetorical question...the answer is a resounding NO!

 

[cbg]

Okay, pittguy.

Just about everything you said in your last post is wrong. But for the sake of argument, let's say that it's right.

You say that you don't want to sue. You're not looking for money. We don't have a time machine to turn the clock back and have the HR department give you all the information you ever wanted and then some about your options.

So, in a perfect world, what would be the result here? What was the answer you were hoping to hear? What action on the part of your employer and/or HR would make you feel that justice had been done?

These are real questions. I am truly looking for you to answer them.

 

[pittguy578]

Really? Ok, let's say that I have two employees...Paul and Rick. They both dress proper and have a great personality, which is good, since they are both salesmen. Both employees have the same length of service and, over the years, have averaged out at the same sales level.

About a 7 year ago, I happened to see Paul scratch his elbow while on the sales floor. There's no policy about that, but it has stuck in my mind because I HATE elbow scratchers.

Now, let's say that Paul and Rick have been carpooling. they arrive at the SAME time every day. Literally walking through the door together as if they were joined at the waist. But, for the last week, they have been 9 minutes late every day and have been written up by me with the exact language. The final write-up states that they will be terminated if this occurs again. Well, here they come, 9 minutes late again. Company policy is clear. They've both received the exact warnings. They're both in the SAME position. Unfortunately, I can't fire them BOTH, otherwise I have no more salesmen. So, I guess I'm going to have to be discriminatory and fire Paul, since he scratched his elbow 7 years ago.

So, tell me, do you think that Paul has any case against me/the company for wrongful termination? It's a rhetorical question...the answer is a resounding NO!

That is a totally different situation that what we are dealing with here. I am not talking about "punishment" for will violations of company policy where expectations are clear. I am talking about a situation where there is no previous violations/write up and an currently active employee in good standing inquires about specific company policies and is misled and that ends up having negative consequences for an employee. A more appropriate analogy would be if a doctor asks a patient regarding a medical procedure, and a doctor fails to warn the patient of inherent dangers. If there is a formal policy regarding medical leave for current employees in good standing which I was, then the company has a duty to inform an employee if they make an inquiry/need guidance.

You still have not answered my question. Why do companies institute formal policies if they have no bearing on the decisions they can make? Why even box yourself into a corner as a company?

You are clearly wrong here. Look up wrongful termination in PA. It is technically an at will state. However, ff a company deviates from a policy in an employee handbook or any other formal guidelines/paperwork, they can be sued for wrongful termination.