Employment question for the legal eagles

So my wife gave birth to our daughter a month ago today.

At three months pregnant, her doctor put her under work restriction, no lifting over 25 lbs. When she turned the doctors note in to her employer, they immediately told her to fill out fmla paperwork, and short term disability paperwork and sent her home. They said that they do not provide light duty work except for workmans comp claims.

Short term disability denied her claim because pregnancy is not a disability, it was not a high risk pregnancy. This left our two income family scraping by on one income for the last 6 months of the pregnancy.

Today, exactly 4 weeks after giving birth, she got a call from HR asking for a return to work date, specifically she was told that she had to return this coming Monday, despite having been told initially that she could not return until cleared by her doctor.

She told the HR director that she certainly could not return with our baby being only 4 weeks old, to which the director responded "So you are resigning then?" and demanded that she email a letter off resignation. At this point my wife hung up the phone.

Do we have any recourse? She wasn't sure if she would return at all after being put out of work and in a situation where she couldn't even file for unemployment since she was technically still employed.

So now she has essentially been fired for being pregnant, but they are going to list her as having quit. The director actually told her that "We have already been extremely accommodating to you."

We are in Virginia btw.

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Q needing to be answered first: how many employees in the company? chk to see if federal law kicks in

well over the threshold.

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I don't know if you have any recourse. I just want to say that I don't think you should have.

I detest anti-Liberty laws that force employers to give perks to employees. Those laws favor invented rights over real Rights.

Obviously, the first thing to do is consult an attorney who specalizes in employment law. Best bet is to look and see who advertises as handling Wokers Comp cases, but be sure you are not just going to be run through a cut&paste process.

ADA (both state & federal - they are significantly different) applies and your wife may have a case for failure to accomodate a disability. (Yes, pregnancy is now clsassified as a disability. :banghead::cuss::banghead: But since it is, requests for accomodation must be provided.) http://lwd.dol.state.nj.us/labor/tdi/worker/state/sp_pregnancy.html

What does she have from HR telling her to go on FMLA/short term disability? (they are significantly different and you cannot be on both at the same time). Also, there are rules about transitioning from STD to FMLA as opposed to from FMLA to STD. Depending on what HR shoved her onto first may mean they screwed up more tan the other way.

If they told her she cannot work based on her medical condition, they need to get clearance from her doctor for return to work. Actually, they need to stop the unlicensed practice of medicine is what they need to do, along with complying with the rest of the relevant laws.

She needs to deliver a written statement to HR on Monday saying she is NOT resigning, not VOLUNTARILY terminating her employment. FMLA allows for specific lengths of time to be off and still retain employment status. http://www.dol.gov/whd/fmla/ It's not completely cut & dried, so read carefully. Since they did not replace her while she was out (or did they get a temp to cover her job?) they cannot claim she is essential and therefore under reduced time frames.

She told the HR director that she certainly could not return with our baby being only 4 weeks old

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This could be bad, depending on precisely how it was worded. Again, refer to the FMLA info on pregnancy and length of time allowed. The fact that neither of you wants to put a month-old infant in day care is different from she cannot return to work because the baby is only 4 weeks old. People do it all the time. Kids seem to survive it - if the right caregiver is found.

stay safe.

eye95 said:

I don't know if you have any recourse. I just want to say that I don't think you should have.

I detest anti-Liberty laws that force employers to give perks to employees. Those laws favor invented rights over real Rights.

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Work to get the laws repealed.

What "rights" do those laws favor? AFAIK they are expressions of social engineering and clearly say so. Just another bit of promoting the general welfare.

stay safe.

I refuse to disclose my personal opinion about such laws. As a professional bureaucrat my responsibility is to see that the laws are complied with and to explain to the decision makers/policy makers how those laws either help or hinder achieving the goals of the organization. When requested, I assist in revising them to improve the manner and/or cost of achieving the goals.

skidmark said:

Work to get the laws repealed.

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Of course. I don't advocate violating them.

What "rights" do those laws favor?...

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The invented "rights" to a job, to financial security, to be free from discrimination, and the like.

builtjeep said:

well over the threshold.

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then she could have 12 weeks off then, last I looked. If she is past 12 weeks, then I think that they are free to terminate.

Best get back to work if desired to continue working.

I think people should not put kids younger than 2 into anyone's care but the parents ... but I know its not always possible...

Sounds like it is now 7 months into not being at the employer....right? The employer went above and beyond what they are legally required to do.

And that's why I do not like the gov't sticking its nose into everything..if there was no law then the employer might be more willing to continue the absence from work ...


Oh, and congratulations !!!!!!!

eye95 said:

Of course. I don't advocate violating them.



The invented "rights" to a job, to financial security, to be free from discrimination, and the like.

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How, in the context of this OP's post could the OP violate the law....just to clarify for the OP...the OP cannot violate the law in this..only be fired.

davidmcbeth said:

...

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I don't bother discussing anything with you on topic.

Yes, she has been out of work for 7 months. Did you miss the part about her having no choice in that? She did not request leave, her doctor put her under a minor restriction, her employer put her out.

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IF she took 12 weeks FMLA and the short-term disability, she needs Dr. clearance that disability is no longer existing or can be dealt with by some/no accomodation. If short-term disability runs out and Dr. still will not release her she must either look at prior existing long-term disability insurance, various .gov disability programs, or return to work against medical advice. Workplace can either be stupid and get her to sign a waiver of liability or tell her they will not assume liability and terminate her.

stay safe.

Meh. Not the employers fault you decided to have a child.

CDT COX said:

Meh. Not the employers fault you decided to have a child.

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No it is not. But the employer needs to play by all the rules. I'm not yet fully convinced the employer is doing that - but I'm missing some data the OP does not feel like sharing.

OP needs to collect all the internet advice and go see an employment lawyer to find out what's what.

stay safe.

skidmark said:

No it is not. But the employer needs to play by all the rules. I'm not yet fully convinced the employer is doing that - but I'm missing some data the OP does not feel like sharing.

OP needs to collect all the internet advice and go see an employment lawyer to find out what's what.

stay safe.

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play by all the rules? She hasn't been to work in over half a year

She has decided not to pursue anything legally and just walk away, not worth the headache.

CDT COX - She WANTED to continue working through the pregnancy, she WAS NOT allowed to, we are fortunate to be in a position where we can get by on one income, what if she weren't married? Insist that anyone who wishes to keep a job just abort? If you wish to have a family you simply can't have a job as well? How do you think that would work out for the country?

Perhaps the company I work for just has a different view on treating people like humans, but I've seen several people go out for a number of reasons, including a high risk pregnancy, and not be terminated for not coming back before the doctor cleared them. I suppose you would be completely ok with being terminated on the spot if you notified your employer that you'd been diagnosed with cancer or such and would be out for several months? No reason for them to respect your doctors orders or help you maintain health insurance no matter how long you'd been there right? Do me a favor, if you have nothing constructive to offer, go ahead a piss up a rope.

CDT COX said:

Meh. Not the employers fault you decided to have a child.

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CDT COX said:

play by all the rules? She hasn't been to work in over half a year

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Sorry, but I must have missed the memo that said after X amount of time the rules no longer apply. Could I borrow your copy?

As I understood the OP, she was still being carried on the books as an employee - one on some not-well-defined-to-us status. Employers have rules about how they treat employees.

Unless the memo, the one I seem not to have gotten, changed that.

stay safe.

eye95 said:

I don't know if you have any recourse. I just want to say that I don't think you should have.

I detest anti-Liberty laws that force employers to give perks to employees. Those laws favor invented rights over real Rights.

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I agree, I think no one should get health care or benefits of any sort, especially on the taxpayer's dime. therefore I suggest all military retirement, allowances, and disability should be cancelled immediately, and why give some high school student who needs only to get straight Ds to qualify 1500 dollars a month after housing and food is paid for? I think 200 dollars a month is much more reasonable....

so I say lets run all government employment just like you want private employment to be run!

we'll save the taxpayers billions!

EMNofSeattle said:

I agree, I think no one should get health care or benefits of any sort, especially on the taxpayer's dime. therefore I suggest all military retirement, allowances, and disability should be cancelled immediately, and why give some high school student who needs only to get straight Ds to qualify 1500 dollars a month after housing and food is paid for? I think 200 dollars a month is much more reasonable....

so I say lets run all government employment just like you want private employment to be run!

we'll save the taxpayers billions!

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Addressing just your screed about military disability benefits -

So Joe Serviceman puts in his time knowing that there is some risk he might lose body parts if not his life, and you want to leave him there on the sidewalk with a tin cup begging for money to live on? (I do not care if you agree or disagree with the foreign policy that sent Joe Serviceman to where he got blown up. He went in what he thought was service to his country, thus service to you.)

Or what about Joe Serviceman who puts 20 or 30 years in service, at a pay scale much lower than most of the rest of working Americans? His "contribution" to that defined-benefit retirement plan was time and risk. It was in the contract he signed when he enlisted/was commissioned, and in every one he signed when he reenlisted/accepted a commission at a higher rank. But I guess breaking contracts is OK with you.

Just where do you get the $1,500/month left after paying housing and food costs? I'd like to see both the source and the figures.

As for living on $200/month (even after housing and food) - please come back in about 90- days and tell us how that worked out.

Civillians can buy disability insurance. Service members cannot - because insurance companies specifically disallow injuries due to acts of war and define any military service as an act of war. Change that so servicemembers can buy quality disability insurance at the rate offered to civillians and see how many flock to purchase it - it's going to be better that what you get from the government. (And I say that as a disabled vet who actually thinks the care he gets at the local VAMC is outstanding - in some regards better than what I waas getting through private pay until the premiums I had to pay because of my disability (pre-existing condition) grew to more that my monthly income.)

Translate that to cops, firefighters and the like who also voluntarily put themselves at higher risk in order to serve you. Have you thought how the recruitment of replacements would go if those benefits were not part of the deal? (Yes, I admit some contracts have outrageous benefit plans. but those are all negotiable based on municipalities refusing to go further in debt along with a willingness to risk lesser service due to some folks leaving because of the change in benefits.)

There are things I would like to say about someone who espouses the notions you do. I contracted with the owners pof this site not to use that sort of language here on their site, and I will honor a contract I have made.

stay safe.