Can I be "laid off" when returning from medical leave at the same time 4 new nurses being hired?

I have been with this company for 6 months. I am a full-time 3rd shift nurse. I had to go on medical leave due to a fall which resulted in a broken bone and needed surgery. I was off initially for 4 weeks with a cast and the bone was not healing and it was decided I needed surgery to heal properly. I went back to work and worked with a cast 3 weeks until my scheduled surgery. This was all planned and set-up with HR, my supervisor etc. When I was to return I was told my position had been filled. New nurses had been hired for 2nd shift and somehow (2 are person friends of the supervisor) they were permitted to work 3rd shift. I contacted HR and they just said "yeah, you are laid off until something opens up". No one will return my calls and I have heard nothing in 3 weeks. There has been such administrative issues and no one will stand up for themselves - how far can I fight this? I know all about the "at will" employee rights but there is SO MUCH more. I also have information from a previous supervisor and other employees that would like to come forward. Any advise will be greatly appreciated.
Thank you...

2 answers  |  asked Dec 7, 2010 8:04 PM [EST]  |  applies to Pennsylvania

Answers (2)

Christopher Ezold
Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Pennsylvania or Federal law apply, unless otherwise specified.

That being said, the Family and Medical Leave Act ("FMLA") provides job security protection to employees that have to take medical leave of 12 weeks or less for themselves or an immediate family member. The Americans with Disabilities Act ("ADA") prevents discrimination against disabled employees that can perform the job, or against employees that the employer perceives as disabled.

The FMLA requires that you have worked 1,250 hours for the employer in the 12 months prior to taking leave; it appears unlikely you would have met that number. However, if you were terminated due to a disability, or the perception that you were disabled, but could still do your job, then you may have a claim.

If you would like to discuss this matter further, please feel free to contact me at the below address(es) or number.

/Christopher E. Ezold/
Chair of the Board,
Magellan Leadership Group

Nancy O'Mara Ezold, P.C.
One Belmont Avenue,
Suite 501
Bala Cynwyd, PA 19004
(610) 660-5585
Cezold@Ezoldlaw.com
www.ezoldlaw.com

posted by Christopher Ezold  |  Dec 8, 2010 12:51 PM [EST]
Doris Dabrowski
To be eligible for job protection under the Family & Medical Leave act, you must have at least 1,250 hours of service during a 12 month period before the beginning of the period of leave. Your 6 months of employment poses an eligibility problem. Is the employer possibly refusing to rehire you because of a perception of a disability? Are you receiving unemployment benefits for the time in which you are able and available to work? You should consult with an attorney in your area about the details of your case. This answer identifies possible legal issues to explore, without an opinion about applicability to the particular facts in your situation.

posted by Doris Dabrowski  |  Dec 8, 2010 09:38 AM [EST]

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