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Do I have to sign a release for my medical records to my HR for them to decide whether to terminate me after FMLA leave is over?

Sacramento, CA |

I have been off work on fmla/std and have exhausted the 12 weeks leave time. My doctor is not giving the ok to return to work for a few weeks yet. My employer is asking me to sign a release to HR for my medical records as well has having my Dr. fill out a long form. HR will determine under ADA law whether my disability qualifies as a "true" disability to them. This will determine whether they can make an accomodation to my existing job. They have already told me that my job is no longer protected. I have depression. I don't not feel comfortable having HR have access to all of my personal medical records at this point.Won't they likely terminate me whether I do or don't? If I don't sign the release,Can I still qualify for unemploment should I get the ok to work in a few weeks?

Attorney Answers 3

Posted

You do not have to authorize the release of your medical records but, of course, this will make it very easy for the employer to terminate you as your job is no longer protected.

If you wish to have an opportunity to remain with the employer, you need to engage in, what we call, an interactive process, which involves communication between you, your health care providers and the employer. The employer needs to understand whether you have a qualified disability and, if you do, what your limitations are so they can determine whether a reasonable accommodation can be provided for those limitations to enable you to perform the essential functions of your job.

If your medical privacy is more important to you, you have the right to say no and they have the right to say goodbye. You probably will be eligible for unemployment when your doctor releases you to return to work because you lost your job through no fault of your own.

They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.

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Jacob N Whitehead

Jacob N Whitehead

Posted

In addition to Mr. Kirschbaum's comments, I would add that you should contact an employment law attorney immediately. Your employer does not necessarily get the last word on whether or not you have a qualified disability. An attorney, knowledgeable in the Fair Employment and Housing Act (FEHA) and the ADA will be able to walk you through the interactive process with your employer so that you either keep your job or protect yourself if your employer ends up firing you. Additionally, if you do have a disability, the FEHA and ADA require reasonable accommodation which would include granting a few more weeks of unpaid leave even if you have exhausted your 12 weeks of leave under FMLA/CFRA. Either way, you should contact an attorney as soon as you can. I handle these types of disability discrimination claims all of the time. I wish you luck.

Posted

In addition to the good advice my colleagues provided, know that you do not have to disclose your entire medical history to your employer. You only need to disclose the medical information related to the condition for which you need additional leave. For example, if your disability is depression, the employer only needs the records related to your diagnosis and limitations from depression. The employer does not need records of your athlete's foot, broken leg, STD, or anything unrelated.

The interactive process Mr. Kirschbaum mentioned is part of the reasonable accommodation process. A reasonable accommodation may include extended leaves of absence. The employer is required to provide reasonable accommodation for a KNOWN disability. This allows the employer to obtain proof of the disability you want it to reasonably accommodate.

Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment and my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.

An individual is not entitled to unemployment benefits for any period in which he or she is not able to work due to disability. That would be covered by State Disability Insurance. Both programs are administered through the Employment Development Department. edd.ca.gov

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area. I hope you can resolve your situation and wish you the best.

Posted

I would add that depending on how many employees your company has (question implies it has enough because leave is given), the company has a duty to provide you with a reasonable accommodation (if not an undue burden) which may include additional time off beyond the 12 weeks of leave you exhausted.

This is not legal advice and does not create an attorney-client relationship.

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