resignationCan an employer force you to resign if you tell them that you must be out due to an illness, until you see a specialist. Was tol...

Question

resignation

Can an employer force you to resign if you tell them that you must be out due to an illness, until you see a specialist. Was told a doctors note would be needed. This note was delived to the HR department. Soon after this a call came in stating that I did not qualify for medical leave, and that I had to resign. End of call. When the specialist released me I call my boss who ask me for a note stating I was released. I brought this note in and started to work again. Now I am being told that since I resigned, I would not be able to get my vacation this year even though I have enough time in from my original start date or my new return to work date.

Answer

Re: resignation

It sounds like they are saying you do not qualify to be protected by the Family Medical Leave Act. For that, you need to have worked for the employer for 12 months total, and for 1250 hours in the 12 months prior to the leave. The employer needs to have over 50 employees.

If you do not qualify, then the only protection you have is that the employer must follow its own sick leave policies (check the handbook) and not discriminate against you by treating you differently than others. For example, if they allow others of different sexes or races, who do the same job and report to the same supervisor, to take long sick leave without being fired, you might have a discrimination lawsuit.

You might also have a claim of disability discrimination if your illness is serious enough to be a disability. (Basically, a permanent condition that seriously affects a major life activity such as breathing, seeing, walking, or possibly working.)

If you feel there may be discrimination, you can file a claim for free with your local office of the U.S. EEOC, or the state human rights office. Check eeoc.gov or your county website for your county human rights office. IF you file, be sure to ask to "dual file" under the state and federal law. There are time limits so no not delay.

As for the resignation, if you did not say you resign, then any action they take to deny you the job is actually a discharge and you can file for unemployment. Do not sign a resignation - that will likely make you lose unemployment.

Note, though, that if there is no discrimination and no FMLA coverage, they can probably fire you.

Jeff Sheldon

Jeffrey L. Sheldon

The Sheldon Law Firm

CAVEAT: This is only general advice based on limited facts and knowledge of the situation. It thus can not be relied upon as legal advice nor is the author responsible or liable for any actions by the parties involved in the matter.