Can you be fired while on medical leave by your doctor.

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Can you be fired while on medical leave by your doctor.

I was hospitalized on June 25th do to respiratory failure. I was in the hospital for 4 days and was told by my doctor to not return until July 30th. I have spoke with my direct boss every day and sent in all my paperwork from the dr. to HR. I spoke with HR on July 3rd and she was too busy to talk and had to talk to our new President about my options. I believe we should have FMLA since we were just bought out by a new company and merged. I was not told this or nor was anything discussed. Today was the first day I spoke with HR and she told me that they can no longer hold my position and that they had hired a temp girl and she was going to take my place. She said I would have insurance to the end of the month and she was sending me a packet on Cobra Insurance.

Asked on July 17, 2017 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

FMLA may or may not apply: it applies if at *this* location there are at least 50 employees, or in the aggregate, 50 employees working for *this* LLC or corporation within a 75-mile radius. Also, you would have had to have worked there at least a year, and at least 1,250 hours in the past 12 months. If these various criteria--including, as stated, the number of employees for this LLC or corporation within 75 miles--are not met, you would not be eligible for FMLA.
Even if you were eligible for it, if you did not apply for FMLA leave, the employer does not need to grant it to you; employees have to ask for and apply for FMLA--it is not granted to them automatically. And if you were out before asking for FMLA leave, they can often hold what was then an unauthorized absence against you, since you were out improperly or without authority before seeking leave.  (Generally, if you were eligible for FMLA leave, you can be retroactivey "certified" for leave for time you were in the hospital on an emergency basis, but as soon as the emergency is over, you have to contact the employer and ask for FMLA leave.)
If you could not or did not use FMLA leave, they could terminate you: other than as required by FMLA, employers do not need to give employees time off for medical issues or hold their jobs for them (unless you had and used enough sick days to cover your absence). But if you were eligible for and used FMLA leave and are being fired in violation of it, try contacting the federal Department of Labor to file a FMLA-related complaint.


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