Question:
Please help me with questions about my rights
Hi, I don't know what if anything I can do. I was hired at a very large hospital about 2 months ago. I was hired and then put in for my leave of absence. The leave was approved by my supervisor which I have the paper for. I then had to get a note from my surgeon, and a form was sent to the HR department. The HR supervisor denied the leave. My supervisor told me this was based on the fact that this is "elective" surgery, and I did not complete my probationary period. In the HR supervisor's opinion, I can wait to have this surgery till later. I explained this was considered to be medically necessary, and even had to be proved by the very insurance that they provide and are affiliated with. The answer still stands, if I leave for my surgery in two weeks, and don't come back on my next scheduled day, I will be considered to have abandoned my job. I am getting alot of feedback from my co-workers, things like don't resign, make them fire you so it don't look like I am agreeing, fight them for discrimination, etc. Please give me your opinion. I don't know if it's worth trying to do something or not. There is an agreement that they are not committed to employment till your 6 month probationary period is up, but there is a question of this being medically necessary and not in my control. Please help with what you think, who to call, is it worth doing something about, etc. Thanks so much for any help. I live in PA, if that helps anyone. — Tammy B. (posted on April 12, 2002)
April 11, 2002
If there is a probationary period then I guess they can fire you for any
reason ie. absencence. However I would not resign and fight it----- Good
luck
— Robert L.
April 11, 2002
Yes, crazy as it seems, a company has the right to instate a
"probationary period" during which they do not have to honor the
FMLA. As long as this is a consistent policy with them, they're legal.
— Terissa R.
April 12, 2002
If you really like your job and want to keep it, I recommend that you wait
until your probationary period is up and have your surgery scheduled for
the next day. I know that this is difficult and waiting is extremely hard
(I waited for almost two years between denials and initial surgeon
consults, etc.) but if you really like the job, you need to weigh whether
it is worth keeping or not for the surgery. In a probationary period, you
don't really have any rights, companies do this to protect themselves from
unemployment lawsuits, etc. I doubt if you would win any fight with the
company considering the amount of time that you have been employed. I wish
you luck and hope that you find the answer that you are looking for.
— Kierstin C.
April 12, 2002
Tammy... This is just a suggestion, but have you taken a written letter of
medical nessecity from your PCP or your surgeon? If they still don't see
it as medically nessecary, I'd deffinately hang in there and either fight
it or just wait the three more months for the probationary period to be
over if you really want your job....
— Elizabeth D.
April 12, 2002
I wish I could post this anon, but heck, I'd let 'em fire me, then collect
unemployment while you recoup...as long as you were at your previous job 6
mos. you should be able to get it. Why are they being so crummy about
this? Are they short staffed? Good luck!
— rebeccamayhew
April 12, 2002
In response to Rebecca......i think that if you get fired you can't collect
unemployment.( I did however love your answer)Maybe you could be considered
temporarily disabled.Maybe... you could give the HR person a good *smack*
upside the head and knock some sense into them(hehehe)I wish you tons of
luck
— Tina C.
April 12, 2002
As the Director of Human Resources in a large organization, let me give you
a little insight into the law. Unfortunately because you have not been
employed for 12 months and have worked 1250 hours you would not be entitled
for a Family Medical Leave which gives you job protection for up to 12
weeks. This is a federal law. I doubt if PA has a law that would give you
additional protection, but you may want to check. I hate to be the bearer
of bad news, but it does sound like the HR Director does have the right to
deny the leave legally because of your short employment history. I wish
you well with this tough decision that you have to make.
— Joanie J.
April 12, 2002
Just to clarify, you CAN file for unemployment after being fired or laid
off in TX, at least...I am sure it depends on your state laws. Not that I
know this from, uh, personal experience or anything...
— rebeccamayhew
April 12, 2002
Re: unemployment after being fired usually depends on the reason for the
termination. for example, if you are fired because you're just bad at your
job, you'll be eligible for unemployment. If you're fired for
insubordination, misconduct, embezzlement, etc., you would not be eligible.
Re: can they refuse to give you leave, as several others noted, yes,
they can. Your short employment disqualifies you from protection under
FMLA . If you do not report for work and are not on an approved leave,
they can terminate you, whether your medical procedure is medically
necessary or not (for example, if you had a heart attack, they could
legally do the same thing). This comes too late for you, but when I
started my new job 45 days before my surgery date, I negotiated leave for
the surgery as part of my hire. -Kate-
— kateseidel
April 14, 2002
I know I'm chiming in a little late, but be very sure of what you are doing
regarding getting fired and collecting unemployment. Although unemployment
benefits are mandated by the federal government, each state can make their
own rules about who can collect. Some states have very lenient rules while
others do not.
— garw
August 25, 2003
I know I'm posting am answer last but wls when deemed medically nessicary
is not elective it is for your health and you are protected by FMLA. They
might not be able to guarantee that particular position but they have to
find a place for you when you come back. GOOD LUCK
— Julie H.
August 25, 2003
fmla has a lot of rules, including having had to work there for 1250 hours
in thr past 12 months. In my state to get umemployment there are also
qualifications, hours worked etc. also In my state you have to be available
to work right then, IE if you are medically unable to work you are not
eligible for unemployment.
— **willow**
August 25, 2003
I personally would wait the 4 more months then reapply for leave if you
like and want to keep this job. I like mine very much and scheduled my rny
as not to interfere with summer vacaton coverage or christmas holiday
coverage. I work in a hospital too.
— **willow**
August 25, 2003
Ok this is my last post on this subject. I looked at your profile, and see
that you have the wls a long time ago and are now having plastics done.
congrats on insurance finding it medically necessary. you have a lot to
consider if you want to wait vs. losing your job.
— **willow**
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