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Can I be terminated due to an injury outside of my job?
Anonymous3 views3 answers
On Jan. 15, I had a severe injury at the gym. I tore the tendons of my quad muscles above my knees. I worked at the facility for four years, but a new company took over. I only been with them for five months. I was told that I would be placed on medical leave w/o pay. I had to submit a return date to the company. After doing so, I was informed that I had two options... resign from my job or be terminated. Is this legal?
Generally, the answer is yes. An injury outside of work does not provide you with many legal protections. If you have accrued PTO time, you should be permitted to utlize it. If the injury is such that you must be absent for 3 or more days and the employer has 50 or more employees within a 75 mile raidius of where you work, you may have rights to unpaid time off under the federal Family & Medical Leave Act (FMLA). Also, the point about the ADA made by the prior attorney is also a good one. If you were placed on medical leave (presumably FMLA) and then given the option to resign or quit, you may have a claim. However, the leave you were placed on may not have been FMLA leave since you say you were only with then 5 months and for the FMLA to apply in addition to the employee threshhold issue, you must have worked for them a year and at least 1250 hours within the past year. Thus, I suspect you may have been placed on some employer type leave and should consult with a local employment attorney for more detailed discussion of your factual situation.
I am a California attorney and not eligible to give legal advice in your state. The following is information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. If I refer to your state's laws, that only means I did a quick Internet search and found something that appeared relevant. However, you should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.
I'm not sure why you posted this in the workers' compensation forum. It does not appear your injury is related to an on-the-job injury. For this reason, I've shared your question with the employment law forum, where your question may be seen by more attorneys who practice in this area of the law.
If the employer has at least 15 employees and is requiring you to be 100% healed before you can continue working there, it is violating the ADA, assuming your injury meets the definition of "disability" under the law. From what you wrote, the injury probably meets the definition. Under the ADA, the employer is prohibited from firing you or otherwise discriminating against you because of your disability. Also, it may be required to alter the way things are done at the workplace to provide you with reasonable accommodation. Please look at my guide on the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA): http://www.attorneyqna.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.
If you believe the ADA applies to this situation, you may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.
Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.
I hope you can resolve your situation and wish you the best.
Robert Louis GardanaAdmiralty / Maritime AttorneyMiami, FL ·
You should be on worker's compensation and contact a worker's compensation attorney immediately. Employees often do not file claims for workers' compensation because of fear may lose their jobs. Sometimes, instead of filing workers' compensation claims, employees will use their health insurance for doctor visits and, if they need time from work, thay use any sick days or short-term disability time they have. However, if your doctor determines that you have a work-related injury, they may refuse to treat you further.
As for your can your employer fire you or make you resign for filing a workers' comp claim? The short answer is, no, an employer cannot fire you because you filed a workers’ compensation claim. Your employer can fire you during an open workers’ compensation claim - but must be able to show the reasons for laying you off are unrelated to your workers’ compensation claim. In Florida, most employees are “at will” employees and their employer can terminate them for any reason or no reason whatsoever. Similarly, employees can resign from their jobs for any reason or no reason. If you do not know exactly what your employment situation is, you are most likely an “at will” employee. Many employers will not come right out and tell an employee that their workers’ compensation claim is the reason for being terminated.
See a worker's compensation attorney asap.
