Terminal EE Requests FMLA

My request isn't for one or our own employees but I need some input on a situation. I'm trying to help someone I know that was diagnosed with a rare tissue cancer. She works for a children's hospital. She took FMLA leave between July 2008 and November 2008 and was still unable to return to work at the end of her 12 weeks. Her employer did approve an unpaid leave of absence after she exhausted her FMLA leave. When her LOA was over and she was ready to go back to work they sent her a letter saying she'd exhausted her leave and they were firing her. She met with HR and was told it would be up to the supervisor if they would continue her employment. Her supervisor told her she was welcome to come back and she denied that they ever considered letting her go despite the fact that she had a termination letter in hand.

She returned to work in spring 2009 and throughout 2009 worked 1,250 hours and became eligible for FMLA again November 2009. In February of this year she submitted a request for FMLA. She's undergone treatment and surgeries since her initial diagnosis and was recently told she is terminal. She has been very sick and in a lot of pain. It's been a few weeks and she still hasn't heard whether her FMLA request will be approved. An HR rep has asked her to provide them with a complete accounting of all the approved vacation and sick time in 2009 that was taken in relation to her cancer. She wasn't eligible for FMLA but her LOA was approved as was her paid vacation and sick time. The HR rep won't tell her why they want her to account for every hour paid PTO.

I understand they have a hospital to run. She's been a loyal employee, hard working and productive when she wasn't on leave. Can they question her regarding vacation and sick time that they approved when they didn't ask at the time it was taken? And can they use it against her now? She fears that they're trying to find a way to fire her and they don't have performance issues to fall back on.

She's applied for Social Security disability benefits and was denied. I think she's too tired to fight the system. If she's been denied SS benefits could her job still be protected under ADA? If they don't have performance issues and the time paid and unpaid taken after her last FMLA leave was authorized can they deny her FMLA request now? It qualifies and she has the 1,250 worked in the 12 preceding months.


  • 17 Comments sorted by Votes Date Added
  • First, I am so sorry for your friend. She has so much to deal with just with the illness, without having to deal with all the other stuff too.

    It's hard to say what the HR people are thinking, especially without having read their policies. It is quite possible the policy states that the employee needs to bring any FMLA situation to their attention. They may be looking to see if she has been following policies. I don't see what difference it makes if she wasn't even eligible, and it could be the upper management just asked a dumb question and the clerks are just trying to asnwer it. As I said, it is really hard to know what they are thinking.

    Social Security can be tricky because they have certain markers you have to reach. She may be close, but didn't quite make it and only needs to reapply after she reaches them. She should ask questions and get the details about her denial.

    The new ADAAA does cover cancer, but she has to show that she can do the essential duties of her job with or without reasonable accomodation (like time off).

    If she has worked 1250 hours in the preceding 12 months and has the time period in (and it sounds like she does) she should qualify for FMLA. If they deny it, she should seek outside help.

    Some cities and states have health advocates. These are people who understand the laws and systems and will fight for her rights for her. It is not the same as a lawyer, these are usuallly people who have been in the healthcare industry. They can deal with the doctors as well as the paperwork and systems. I suggest she try to find someone like that if she doesn't have a spouse, parent, sibling, or friend with authority who can do so for her.

    Good luck!

  • Thanks Nae. We've never had anyone use FMLA and just reached the threshold of employees in our company 2 years ago so it's not something I've had to deal with personally at work. I've read many posts and have always found everyone here so helpful. I appreciate the suggestion and will look into health advocacy in our state.
  • Sad story. Ditto the part of re-applying for SSDI. .Almost everyone is denied the first time around has been my experience. There are attorneys out there who specialize in helping and don't think they are that expensive.
  • Today seems to be my day for posting messages, this is kind of rare for me. I have had first hand experience within the last year in aiding three of my employees or their family in securing Social Security Disability in terminal cancer situations.

    Social Security for Cancer Patients can normally be filed and processed as "Compassionate Social Security Disability Allowance for Cancer Patients. Although there is still a waiting period for the first check to arrive the determination is MUCH more rapid that a normal filing. I know there are a list of certain types of cancers that automatically qualify but perhaps the following link could be given to her doctor so they can make sure and include everything needed for the resubmission of the claim.

    I am posting a link that I hope you will find resourceful:


    I wish you the best of luck helping your friends. It is disgusting that this has to happen to someone who has committed their life to caring for others.
  • 1 - Has HR provided her with the required FMLA notices? They are supposed to provide an Eligibility Notice and Notice of Rights and Responsibilities within five business days of the request for leave. This is important in this case because it sets into motion various other deadlines. If they have not provided such notices, then they are clearly in violation of the FMLA.

    2 - Have they asked the employee to have her doctor fill out a medical certification form? Once she has provided that form to them, they have five business days to give her a Designation Notice advising her of whether her leave has been approved or denied.

    3 - If the employer does not require employees to provide a certification form, it may have missed the deadline for providing the Designation Notice (if it has enough information to determine whether she has a serious health condition).

    4 - Is it possible that the HR person has requested the detailed accounting in order to challenge whether the employee has worked the required 1,250 hours? If that is what they are up to, I think they are treading on thin ice. The burden is on the employer to show that an employee has [B]not [/B]worked the required number of hours. It is not the employee's responsibility to prove that she [B]has [/B]worked the required number of hours.

    5 - Leave that was approved and taken during a period of FMLA ineligibility cannot subsequently be applied to the employee's FMLA allowance (after she attains eligibility).

    6 - The fact that she was turned down for Social Security Disability benefits has no bearing on whether she is disabled under the ADA. As someone else pointed out, however, the issue under the ADA may be whether she is able to perform the job's essential functions. There may also be an issue as to whether accommodating her would create an undue burden for the employer.

    I strongly recommend that this person consult a good Plaintiff's lawyer, one who is very familiar with the FMLA.

    Hope this helps.

    Julie Athey
    Author - FMLA Compliance: Practical Solutions for HR
    and HR Q&A: Family & Medical Leave Act
  • I can't help thinking this was caused by some curious (and untrained) manager simply asking how much time the employee had already taken off for this illness. It is not unusual for employees to snap to attention and try to get the answers instead of just telling the manager that they don't keep track of this info and why.
  • I've passed this information along. She's so grateful for your input and asked that I thank all of you.

    Her nightmare continues with her HR department. She's been calling and sending emails and all go unanswered though they sent her another email Monday asking for her to account for all of her vacation and sick taken in 2009.

    She applied for the group guarantee issue life insurance at open enrollment in January but they haven't started deducting premium and won't tell her why. There was no physical or health questionnaire but they haven't given her a policy yet. She wanted a little something for her parents to help pay for her funeral costs. She just breaks my heart.
  • It sounds like the HR department has dug their feet in. Their lack of communication also sounds like they either don't know how to handle this, or are doing some serious CYA.

    I really really REALLY hate to say this Cheryl, but she probably needs to hire a lawyer or other adovcate. There are a number of avenues if her funds are limited (and it sounds like they are). I am sure many of the forum members here could give you advice on how to go about it if she doesn't know where to start.

    If she still feels there is hope with dealing with this HR department, then I would suggest she actually make an appointment with one of the HR managers. If she explains that she just wants to understand and intends to be as cooperative as possible, she might get better results. The company was originally very helpful and lenient, so this turn seems strange. Perhaps there is just going on more than we can see.

    Good luck!

  • I'm sorry Cheryl for what your friend is going through. i can't imagine how tough that is. I have a question regarding her time off, doesn't payroll have records of all her vacation and sick time taken? Why can't HR get that information from them, or am I missing something? This just doesn't make sense to me.
  • HR has the dates that she took vacation and sick but what has her worried and frustrated is that they want her to provide them with a list of which days were taken for her cancer and treatment. When she submitted her requests for vacation they didn't ask the reason she wanted to take vacation. She has asked why they need to know that now when the time was approved in 09 but no one will tell her.
  • I would assume they use a rolling 12 months and they want to see how much of the 12 weeks they can say has already been used.
  • I don't see how they can do that, Frank. They can't go back and disignate it as FMLA at this late date. Whether she had her nails done, was home sick, or was in the hospital undergoing some procedure, they should have asked at the time; it is too late now.

    The whole thing sounds suspicious to me, but the reason they want to know may not actually have anything to do with the employee herself. They may be wondering if a supervisor or other person should have been asking all along and this is how they prove it.

    I am most disturbed by HR not responding to her questions. Either they don't know the answer, or they are afraid to tell her. She either needs to talk to someone high enough to give her some answers, or get someone involved who can do it for her.
  • I'm not saying they should be doing this... but it could be the reason why.
  • I agree Nae, they should be communicating with her. How they are behaving is unprofessional and unkind. They should have been accounting for her FMLA from the start and if they neglected to document which absences were for FMLA, it is too late. It does sound like a serious case of CYA.

    I wonder if their policy says they can term if all federally granted leave is used. This whole situation is suspicious. I'm especially bothered by them not deducting her life insurance premiums. Sounds like she does need some legal help. What a horrible situation to have to go through this when she should be trying to concentrate on her health.
  • federally granted leave?
  • ok, thanks. .I get it now.
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