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Terminated while sick

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ingrid2010

Junior Member
What is the name of your state (only U.S. law)? MA
I have a family member that is a 78 year old man with non-curable cancer. It has recently spread to his bones making it difficult for him to walk. He began radiation to help with the pain last week on Thursday (his employer was aware) and was told by doctors he would be feeling better after this course of treatment (two weeks.) He scheduled his daily treatments after work so he would not need to take any time off. He has always scheduled his cancer treatments around his work schedule. Today, without warning or any previous discussions, his boss called him into the office and terminated him saying he was a "safety hazard." Is this legal?
 


ecmst12

Senior Member
Possibly, depending on what he does for a living. But maybe he was just doing your relative a favor. A 78 year old person with cancer metastasized to his bones doesn't have a lot of time left. He should try to spend it doing something other than working.
 

ingrid2010

Junior Member
Other thoughts?

Possibly, depending on what he does for a living. But maybe he was just doing your relative a favor. A 78 year old person with cancer metastasized to his bones doesn't have a lot of time left. He should try to spend it doing something other than working.

He is 78 going on 68 -- a runner up until not long ago. You're right. He doesn't have much much time left, at all, and he loves to work. It kept him "normal." That wasn't really the advice I was looking for here. I would think that some conversation and a formal process, after 45 years of employment, would be warranted. Any other thoughts?
 

Just Blue

Senior Member
He is 78 going on 68 -- a runner up until not long ago. You're right. He doesn't have much much time left, at all, and he loves to work. It kept him "normal." That wasn't really the advice I was looking for here. I would think that some conversation and a formal process, after 45 years of employment, would be warranted. Any other thoughts?

What does he do?
 

ingrid2010

Junior Member
He is technically retired from a large company. I don't know how many employees in total but it is a big place with many different departments. He went back part time working in a machine shop. He does whatever they need him to do from cleaning up the shop to ordering stock.
 

eerelations

Senior Member
What does "big company" mean? As in how many employees? (Ballpark's OK.) And how long has he been part time? Has he worked for them at least 1250 hours in the 12 months previous to his termination?
 

ingrid2010

Junior Member
11,000 employees. If I had to guess, he has been part time for close to 10 years. He works 3 days, always over 12.5 hours. I believe it's 18 or 20 hours per week.
 

Chyvan

Member
terminated him saying he was a "safety hazard."

His employer probably handed him a worry-free 30 weeks of UI. Just apply and take the low hanging fruit. Since he was still working even with the treatments, he still looks able and available. It's also unlikely that no matter how hard he looks, anyone will be offering him a job.
 

cbg

I'm a Northern Girl
If the answer to eerelations' last question is Yes, then he very well may have a FMLA violation. Whether the answer is yes or no, he may also have a ADA violation.

The question is, does he want to pursue them? He could, but it will not be quick or easy and depending on how much time he really does have left, may consume all of it.
 

commentator

Senior Member
I agree with cbg, this would be a long drawn out process, and how much of his final time here does he want to spend in litigation over something that might or might not be a big deal?

If he was there working in a temporary capacity, (since, as you said, he had returned to work part time after a formal retirement) and they told him they do not need him any more, that was probably legal. When we say he was "terminated" I suspect this was a "we no longer need you" or "we don't want you to work any more, we're laying you off." Is that what happened? It wasn't a "you're fired!" was it?

Given that it sounds like he is on a work floor around mills and lathes and other heavy duty machine shop equipment, they could legitimately say that a person who had difficulty standing and walking around due to his weakness might present a safety hazard to the company that would justify their actions. They might be concerned about a lawsuit if he fell over dead or did something at work which he could (or his heirs could) claim had hastened his demise or worsened his condition.

But if they are by any means a large company, you can sort of bet they have thought about it before they have taken this step. Most companies are absurdly worried about discrimination/violation issues when they get an employee of this age still working. They will have had a safety consult about it, and probably HR has thought their action through before taking it.

In this situation, unemployment insurance isn't even going to be much of an easy thing, either. Because he was able and available for work until his termination, and working part time, he may set up a claim monetarily and may be able to get a doctor to state that he is able and available for equivalent work.

However, in the last few years they have made it much more stringent to continue to be able and available. There is now, in every state, a "profiling" program which picks out the claimants who are least likely to be re-employed based on their categories such as age, educational level, etc., (how's that for legal discrimination?) and causes them to be called in repeatedly for organized and monitored job search activities. He would pretty much have to swear to a lie every week, and make repeated trips in to the job search office where he would have to testify again and again that he was looking for jobs and would have to show where he had made contacts with employers for job seeking purposes.

I just do not see somebody who has been able to continue to work part time as a happy life enrichment program in retirement only because they made very special allowances for a beloved former full time employee being willing to engage in a long and contentious lawsuit against the company that allowed him to do this.

And I don't see him getting out of his sick bed and dragging into the job search office to lie his head off just to draw maybe a few more dollars for a few more weeks based on this complete lie that he's able, available and actively seeking other work, either. I'm perfectly in favor of a person being able to draw at any age if they really do meet the criteria, but we gather from the sound of this that this person is close to terminal.
 

ingrid2010

Junior Member
Thank you all very much for your input on this situation. I believe my suspicions were correct. My family member was contacted by Human Resources this morning with an apology and to inform him that he still has his job. He just needs to provide a doctor's note saying he can work. My heart really goes out to him for all he has been through. He does still want to work. I'm sure he will choose leave when he can't do the job anymore. Thank you again.
 

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