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Fired for being sick?

BUT I'M SICK...YOU MEAN THEY CAN FIRE ME??

As too many employees have learned in recent years, the myth that "You Can't Fire a Public Employee" is false. There are three general reasons you can be separated from your "cushy" job: 1) disciplinary dismissal, 2) layoff, and 3) termination due to absenteeism caused by illness or disability. The first two scenarios are fairly well understood: If you're fired as discipline for bad behavior, you have the right to a "Skelly Hearing," and a full, evidentiary hearing, with the burden on the City to prove that you did something seriously wrong. If you are laid off due to cutbacks or contracting of services, the City must first show cause for the layoff, negotiate a seniority-based layoff procedure, and then, negotiate over such "impacts" as your severance package. You can always go to court if unsatisfied, and the "rules" for layoffs and discipline are fairly clear. But, if you are seriously ill or injured, the rules affecting your rights are very confusing. What follows is our best attempt to clarify these.

TEMPORARY VERSUS PERMANENT 'DISABILITY'

Many people operate under a false assumption that if they have a legitimate illness, they cannot be fired. Thanks to the Family Leave Act of 1993, this is somewhat true. You have the right to take up to 12 weeks off the job, for illness or non-work-related injury, before your employer can sever you. The City does NOT have to pay you during the Family Leave time, but you do have the right to use all accrued leave before going into unpaid status.

Many agencies also provide disability insurance, which can cover your loss of income for a period of time. But being “on disability” is not a guarantee that your job will be held indefinitely. If your condition lasts longer than 12 weeks, or if you are really not able to perform your job after you return to work, you CAN be replaced by someone who IS able to do it.

While you’re on Family Leave Time, the City must continue to provide its regular medical contribution. After that, you may be required to pay your own monthly premiums.

IF YOUR INJURY IS WORK-RELATED...

If your absence is due to a work-related injury, the law requires that you be paid Temporary Disability income of at least 66% of your base pay. Some employers provide full pay for a period time. This is a negotiable subject.   During “Injured-On-Duty” time you are not required to use your own Sick Leave, and your medical benefits must continue.

You will not, generally, be terminated while on “IOD time” -- but this rule doesn’t extend indefinitely, either. If you are unable to work for months, the City can press for a medical determination as to when you’ll be able to return to work -- or if you should be declared “permanently disabled.” Under current Workers Compensation law (which changed radically for the worse in 1994) you can be terminated if you are not going to be able to return to work, at full capacity, within a year. If you are terminated due this “physical incapacity” you should have an attorney representation in working out a permanent Workers Compensation settlement Be aware, though, that it is usually much less than you would earn if you were capable of continuing to work...

Under the Americans with Disabilities Act, the employer is now required to “accommodate” a permanently injured worker by offering a job that you CAN perform or modifying your current conditions (such as making your office wheel chair accessible.) This requirement applies whether your injury is work-related or not; however, the employer can evade it by arguing that it would cause “unreasonable hardship” or expense.

DON’T I HAVE ANY REAL PROTECTION AT ALL???

YES. There are several legal “obstacles” we can throw in the path of an employer who wants to get rid of a sick or injured worker.

For example, under “Skelly” law, you have the right to a full hearing before you can be lose the “property right” to your job for any reason, including illness. If you’re being terminated for this reason, the City has the burden of proving that you are either 1) not legitimately ill; 2) so ill that you can no longer do your job, and can’t even be ‘accommodated.’ At the “Skelly hearing” you have the right to try to prove that you can do your job. Your case would revolve around whether the arbitrator, judge or Personnel Board believes your doctor or the City’s.

Also, the Americans with Disabilities Act, which has generally been dismissed by employers, is now receiving some force with test cases in the Courts. The ADA applies, by the way, whether your injury was work-related or not. The problem is that, if the employer refuses to accommodate you, you still have to sue. 

THE HUMAN FACTOR- IS IT GONE FOREVER?

Public employers used to be compassionate and generous employers: sick or disabled employees used to be reclassified, not fired. But the recession, coupled with the political attack on public employees, changed the picture. Most public agencies now employ “Risk Managers” whose key function is to determine whether the risk of keeping you is worth your value to the organization. The pressure to remove an “unproductive” worker from payroll is very real.

An effective union representative will know how to negotiate in your best interest. We can often toss enough legal shrapnel into the arena that the cost of terminating an injured worker gets very high, indeed. But the law is full of loopholes, and if you must actually go into Court, it’s very expensive. It’s best to make sure that your employer truly values you in the first place.

The truth is that the human factor -- your own ability to convince your employer that they need your contribution  -- is probably your most important tool. If your supervisor views you as a valuable, hard-working member of the team, he is more likely to advocate that you be “accommodated” than if you are someone who grudgingly does your job. A “good employee” who becomes ill engenders sympathy. A less valued employee may be viewed as someone who is milking the system - or perhaps even cheating.

The problem is, it’s difficult to be a “good employee” when you are off the job, often in pain or worried about your future (often because of a injury at the job...) You may be frustrated in dealing with doctor’s bills or disability forms. And your employer keeps badgering you for medical information you can never provide. If you are having trouble maneuvering through the bureaucracy, or if you believe that your rights are being violated, call your Association staff. We are experts at the ADA, the FMLA and Workers Compensation law, and this is what you pay dues for.  Do NOT call an attorney unless you have already been permanently found incapable of working any longer -- and agree with this finding. A premature lawsuit could jeopardize your job.

Keep in mind, though: the City does not have to employ you forever. It is wise to try to be as cooperative as possible. Your union rep knows the local system, and can function as your liaison. 

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