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Not a good night

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6 hours ago, Sedalia Dave said:

You all realize that leave taken under the FMLA is unpaid. 


Not necessarily so.  Generally, if you have accrued sick time you can use it; however, it does protect you from disciplinary action for doing so.


A bit under two years before I retired I got to spend a couple of days in the cardiac ward, after driving myself to the hospital in the next county at 0300 one morning.  I literally called in sick from the ER.  AFIB.  Undoubtedly triggered by job stressors (mentioned in other posts).


It was serious; my doctor and I had a heart-to-heart (pun not intended!) discussion, and he strongly recommended I expedite my retirement.*  


I explained that I absolutely had to hang almost two more years; Doc explained FMLA to me and said that he was going to expedite the paperwork for me.  He did, for an unheard-of 18 months.  He said that at the end of that time I was to contact him for a six-month extension.  (Note:  FMLA is for 12 weeks, but this can be cumulative.  During my entire time on FMLA I actually used very little time off - and had leave time available when I did.  


Unfortunately, my doctor retired a year later.  At the end of the first 18-month period, I did approach my new doc about an extension.  He was very reluctant, and said that if he did at all it would be for only six weeks.  I handed him a copy of my old doc's paperwork - he was incredulous after reading it.  "Wow!  I had NO idea of your history!  Tell ya what... I'll give you another six months, and we can extend it again if we need to."


We didn't.  I retired four months later.


But back to the original event:  At that time I had something like over 1,200 hours of accrued sick time on the books, and this was after "donating" several weeks to other staffers over the years.  I also had a reputation of being highly dependable - I was the guy who was NEVER sick, and still showed up if I was.


But my boss was not impressed.  I had to report to the labs at least twice a week for blood work for several weeks, and then weekly, then bi-weekly, and periodically through today.  So... I had all that time available, and my boss (lovely lady - not!) in a snarling voice said to me "That lab [60 mile round trip from home] opens at six o'clock in the morning.  That means you have time to get there and have your butt at your desk by eight o'clock and I expect you to do just that!"  I figured that in the interest of survival it was prudent to comply.


I stuck it out.  Just before the FMLA extension was up I turned in my paperwork, and was retired about six months before Social Security started.  The agency's Executive Director asked me what I was going to do; I told her I intended to file for unemployment to bridge the gap until my "pension" kicked in.  Surprised, she said that she thought one could not collect unemployment after resigning - I carefully explained that indeed I could; if the agency refuted my claim I was almost guaranteed a win on appeal... but that was a moot point, as resigning for a serious health issue is considered a viable reason in this state... and it was a matter of record that the job had already put me in the cardiac ward.


She chuckled and winked and said "You don't have a thing to worry about" and gave me a hug.**    


But, bottom line - I would encourage pursuing the FMLA thing.  (Note:  FMLA is for 12 weeks, but this can be cumulative.  During my entire time on FMLA I actually used very little time off - and had leave time available when I did.  For me, the main thing was FMLA also prohibits employers from firing, disciplining, or penalizing employees in any other way for taking FMLA leave.  In my case, it had the effect of somewhat reducing the harassments.  But my job was essentially safe.)  


* I have a friend who is an LCSW.  One evening we were discussing work scenarios, and he asked about my job.  An hour later he told me that first thing the next morning I needed to make two phone calls - the first to my doctor, the second to a lawyer.  I didn't; however, the trip to the ER happened shortly after.  Same pard later told me "Dude!  You need to retire A*S*A*P~!  Ya gotta do it SOON, before either that place kills you or someone has to read you your rights!"


** We'd been "work buddies" for years before she ascended to the Executive Director position.  To her credit, she did not "meddle" with her subordinate department managers, and I would not have asked her to.  And when I left, she called me in to her office to personally apologize.  But six months later I had to decline with a grin when she asked me if I'd come back as a consultant.


Good Luck, JB~!







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John, you have quite the case against your employer.  Stand your ground.  Get documentation of each of your sick events ("family sick" -- taking care of your wife *IS* allowed under the Family Medical Leave Act).  Bring the documentation to your boss and tell him/her to back off or you'll see them in court.  

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The only problem with court... only the lawyer wins.
Been there, done that... it takes a staggering amount of cash to bring a lawsuit.
Especially against a company with deep pockets.. as they will bury you in endless lawyer fees.

Every time you take a breath, your lawyer will have his hand out for another $5,000 retainer check.
You will need a lot of Moxie and deep pockets to buy "justice."
These things drag out forever, and lawyers bill by the hour.

I doubt you will ever find a contingency lawyer for an employment related case.

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Get an attorney knowledgeable in employment law and experienced in litigation.  There are potentially more avenues than the Family Medical Leave Act open to you.  Without a thorough interview with someone who knows the law, both Federal and State, you will not know the options available to you.  Many of these options offer the right for you to recover your attorneys' fees and expenses if you are successful.


There is no way that even a knowledge attorney can advise you via a message board.  And while well meaning, those offering you advice cannot know enough about the specifics of your case to offer reliable suggestions.  


I know this to be true because I handled cases like yours.  A typical interview with a potential client would span at least two hours, then we would get all the medical records, employment files, review them and then do another follow up interview with the potential client.  I tried more than one case that was similar to what you describe with an employee terminated because of excessive sick leave usage.  For an example of what can be involved in one case I ultimately tried to a jury, see,  https://law.justia.com/cases/federal/district-courts/FSupp/859/498/1396509/  and, https://casetext.com/case/dutton-v-johnson-county-bd-of-cty-comrs


These cases are VERY dependent on the facts, facts that can be unique to each case.  This means the lawyer must spend the time to learn those facts from you and your medical records, your wife's medical records, and research the applicable case law.   Only then are they in a position to offer you advice.


You treated me fairly when we did business, you deserve better, and I wish you the very best.

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