Laid off on FMLA leave

[thebull63]

What is the name of your state (only U.S. law)? Louisiana
I am currently on FMLA leave due ACL reconstructive surgery performed on 4/14/15 and the doctor put my release to work date as 7/20/15. Last Wednesday, 6/5/15 I received RIF or layoff papers stating that I was laid-off on 6/2/15. I was never called or notified of this, neither was there any type of negotiation held about severance pay or upholding my health coverage until I was able to work again. The paper states that all of my benefits will end on 6/30/15 and I cannot afford to COBRA my insurance. The very difficult part is, I have more doctor's appointments and physical therapy in the month of July before my full recovery. The RIF states that my position was terminated due to the facility I worked at closing down, however there are many of the guys from that facility working at the other facility across town. This is the 4th wave of layoffs the company has gone through, but there was no necessity in my mind that my employment had to be terminated, especially when I don't have the physical means to work and I have a month and a half until I can actually do so. The HR department never notified me as to whether or not my FMLA was even accepted or not. They also stated that my Short Term Disability was going to stop after 6/30, but upon calling the agency, they said that it would continue until I was released from my doctor. Which is true? I've tried contacting the Department of Labor and EOCC, but can never get through to someone. I'm thinking of contacting a lawyer, but I don't know if its worth the time and money. I thought I was protected. I know now from research that they can lay you off as long as they can provide proof, but from what it states in the paper... they could have kept me. They also titled my position wrong. They gave me the title of CNC Machinist, but I am a Manual Machinist. I don't know if that means anything. Do I have grounds to do anything? Whether this is legal or not, I believe this one of the worst things that you can do to a hard working employee. Any advice is appreciated.

 

[eerelations]

While your employer isn't legally allowed to lay you off because you're off on FMLA leave, your employer is legally allowed to lay you off for pretty much any other reason (except those reasons prohibited by law such as race, gender, and religion, etc.) - and closing the facility where you worked before you went off on FMLA leave is a legal reason to lay you off. Your only possible legal recourse here is if you can prove that your employer didn't offer you a position at the other facility specifically because you were off on FMLA leave. If you think you can prove this, the federal DOL is the place for you to file a claim.

Regarding severance pay, employers aren't legally required to offer severance pay to laid off employees unless WARN applies or you have a contract or CBA that dictates otherwise. If you believe WARN applies, or you have a contract or CBA that includes severance pay provisions, you need to speak to either an attorney, or your union rep if it's a CBA.

Regarding benefits, COBRA is your only recourse unless you have a contract or CBA that dictates otherwise.

I understand your situation totally sucks and is not your fault, however, these are your only legal options. Sorry.

 

[Ladyback1]

While your employer isn't legally allowed to lay you off because you're off on FMLA leave, your employer is legally allowed to lay you off for pretty much any other reason (except those reasons prohibited by law such as race, gender, and religion, etc.) - and closing the facility where you worked before you went off on FMLA leave is a legal reason to lay you off. Your only possible legal recourse here is if you can prove that your employer didn't offer you a position at the other facility specifically because you were off on FMLA leave. If you think you can prove this, the federal DOL is the place for you to file a claim.

Regarding severance pay, employers aren't legally required to offer severance pay to laid off employees unless WARN applies or you have a contract or CBA that dictates otherwise. If you believe WARN applies, or you have a contract or CBA that includes severance pay provisions, you need to speak to either an attorney, or your union rep if it's a CBA.

Regarding benefits, COBRA is your only recourse unless you have a contract or CBA that dictates otherwise.

I understand your situation totally sucks and is not your fault, however, these are your only legal options. Sorry.

And from my understanding of unemployment, the OP may not qualify for UI because he is not actually capable of working if work were offered/available to him.

Am I wrong???

And yes, the situation sux to high heaven

 

[eerelations]

And from my understanding of unemployment, the OP may not qualify for UI because he is not actually capable of working if work were offered/available to him.

Am I wrong???

And yes, the situation sux to high heaven

OP will qualify for UI as soon as he's capable of working.

 

[cbg]

You are not wrong, at least at first. However, when he is medically cleared to return to work, he will be eligible at that time.

Otherwise, I agree with ee. FMLA protects you ONLY from being laid off because you took FMLA - it does not protect you from a layoff that would have happened anyway. The burden of proof will be on you to show that but for your being on FMLA, you would have been retained at the other facility and someone else laid off instead. Your opinion of whether there was a necessity to lay you off is not proof.

FYI, you are only entitled to 12 weeks of FMLA. Based on the dates you've provided, you're going to go slightly over that. That's going to make it even harder to prevail in any kind of claim.

Yes, it's a difficult situation. No debate there. But I'm not seeing anything illegal here.

 

[Nellibelle]

OP will qualify for UI as soon as he's capable of working.

Unless the Op's disability takes longer than the period used to calculate such UI benefits.

 

[Chyvan]

COBRA is your only recourse

Not necessily the only one. There's always the possibily of Obamacare if OP's household income and circumstances fall within the eligibility criteria.

OP, I'd be all over applying at healthcare.gov the second my employer insurance shuts off.

If your household has no or low income, don't be afraid to apply directly for Medicaid. It's forward looking. You could have made $10,000/mo and had health insurance, then because of job loss, you have no income and no insurance, and there's a good chance you'll get it. I have dual eligibility with Medicare/Medicaid and even get a social security check and don't pay anything for my medical whereas prior to Obamacare, I think I'd have only gotten the Medicare.

 

[ecmst12]

Your STD payments should continue until your period of disability ends. The policy will terminate, meaning you won't be able to put in any new claims after 6/30, but since this claim is already open, it should continue paying per the policy until you are released back to work or you max out the benefits for one claim.

 

[Zigner]

Unless the Op's disability takes longer than the period used to calculate such UI benefits.

Another useless tidbit since the OP already has a return-to-work date in July.

 

[commentator]

And one more time, I'm going to advise this person, who is in my area here, southeastern USA, to file for and set up the unemployment claim RIGHT NOW before the end of June, unreleased by his doctor as he is. Because he may lose quarters of benefits that would be used to set up his claim. He wants to get his max weeks at that princely maximum of $258 a week. (0ne of the lowest in the USA.)
And he has a legitimate no fault lack of work lay off from the company. The claim will set up, and it will sit there until he is fully released by the doctor, which he is saying will not happen until sometime in July (next quarter.)

As far as proving that he was laid off solely because he was on FMLA, (though the whole area he worked in was being laid off, and there had been prior separations) that doesn't sound like something that is going to be easy to prove at all. I'd sure not waste any time or money consulting an attorney. WARN notice applies to a company closure or Mass Layoff involving more than 100 employees in the last year. If they have this many affected, there MUST be 60 days of notice before the closure or mass layoff, and if not, it is considered like pay, all the affected employees have to be paid as if they were working for that 60 day notice period. However, it does not sound like this was a surprise situation, since as the OP mentions, there've been a series of lay offs and this boat is obviously sinking. I suspect they've done their homework about WARN.

I have seen this happen to literally thousands of people through the years. Yes, it's awful, and yes, it could be made much nicer for you by the employer if they WANTED to, but there is nothing illegal about their not doing it nicely, such as offering you another position at another place when you were fully released by your doctor. But there's nothing legal that requires them to do it. You're not what's primary on their minds. If they wanted to lay off you off while you were on FMLA, as they were laying off others in your position and at your facility, they certainly can do it, and most of the time will do it. They gave you the standard lay off slip, it's not a really big deal what they called your position. That paperwork is just for you to use when filing your unemployment claim.

As far as unemployment goes, the quarters change and if you wait until you are fully recovered to sign up, you might have lost a few good covered quarters which may eventually leave blank spots in your earnings/coverage/claim. And there is no downside to signing up right away, now that you have your paperwork laying you off. The claim will sit in place for one year from the date of filing. Whether you've filed for unemployment will have no effect on your FMLA or disability insurance with the company. For information about that, you'll need to keep talking to the company HR.

As for calling the Dept. of Labor and asking these questions, I don't see as it would help much, even if you did get through to somebody. All they'd tell you is what you're getting here. File your unemployment claim, and it will be put into suspension until you are fully released to return to equivalent work.

If you want to, after you've filed your claim for unemployment, investigated insurance through the exchanges, etc. talk to someone in the federal EEOC or the other part of the Department of Labor about your having been laid off while on FMLA, but as I say, it happens all the time, and it's almost never been something that has resulted in any sort of case in my experience.

 

[commentator]

As far as Medicaid/Obamacare, the federal insurance exhanges, don't forget that Louisiana is one of these fine southeastern states in the great race for the bottom regarding health care. They haven't, at least the last time I heard, approved the Medicaid expansion that might assist middle income people who've lost coverage to get some.

 

[cbg]

The EEOC won't touch this. FMLA does not fall under their jurisdiction and from what the OP has posted, this is not an ADA issue. If he were going to contact any Federal agency it would be the US DOL. However, I still maintain that it would be a waste of time.

Let's put it this way. It is by no means clear that this is a FMLA violation. But even if it is, the employer has done it in such a way that they will be able to get away with it unless the OP has MUCH more proof of it than he has shown us here.

 

[LdiJ]

As far as Medicaid/Obamacare, the federal insurance exhanges, don't forget that Louisiana is one of these fine southeastern states in the great race for the bottom regarding health care. They haven't, at least the last time I heard, approved the Medicaid expansion that might assist middle income people who've lost coverage to get some.

While that is true, as someone else already stated, Medicaid is forward looking, so what he earned prior to the layoff is irrelevant. His disability pay however, may make him ineligible until that ends. Again, Obamacare is an option for him.