NEWS

Reader's Watchdog: Can you be fired for being hospitalized?

John Hult
jhult@argusleader.com
Tom McLaughlin shows a wound on his leg related to a medical emergency on Tuesday  at his home in Sioux Falls. McLaughlin lost his job at Bell Inc. in Sioux Falls last week after missing five days of work because of a medical emergency.

Five days.

That's how many sick days it took for Tom McLaughlin to lose his job at Bell, Inc.

McLaughlin was in the hospital for three of those days, being treated for a potentially life-threatening flare-up of infection in two sores on his right leg.

His doctor at the Mayo Clinic in Rochester, Minn., pleaded with Bell to keep McLaughlin last week, saying his medical care was necessary. He'd ignored her advice and come back to work once already in April, even as his daughter pleaded with him to stay in the hospital.

It was no use. The 49-year-old was two months shy of his one-year anniversary with the company – too green to qualify for Family and Medical Leave Act benefits. Bell told him he had to go, that he didn't quality for medical leave.

More:Check out previous Reader's Watchdog coverage.

"Our world fell apart in a week," said Kristi McLaughlin, Tom's wife, who works part-time as a pastor to a small Mitchell congregation. "He was the primary income. He was the primary breadwinner. He provided the insurance. We're looking now at food stamps. We're looking at moving."

The McLaughlins' situation is not rare.

Under state and federal law, there are few ironclad legal protections for employees who miss work for illness. If attendance is deemed essential, employers have little obligation to extend leave to employees on the job less than a year.

Bell, Inc. CEO Ben Arndt would only confirm that Tom McLaughlin had been a night supervisor for the Sioux Falls-based company.

"We respect our employee's privacy, and our policy is to not discuss employee's personal matters with anyone other than the employee," Arndt wrote in an email. "We would encourage anyone who can meet the requirements of an open position to apply or to re-apply."

Employers can terminate for poor attendance

Tom McLaughlin of Sioux Falls shows a wound on his leg related to a medical emergency. McLaughlin lost his job at Bell Inc. in Sioux Falls after missing five days of work because of a medical emergency.

The Family and Medical Leave Act only applies after a year on the job, and then only for employers who have 50 or more employees. Hospital stays count, but not every sort of illness does.

If an illness qualifies, a covered employee is eligible for job-protected unpaid leave of up to 12 weeks.

Even with a doctor's note – or call, in this case - employers are fully within their rights to let an ill employee go if that employee hasn't been on the job for a year.

Those who feel discriminated against due to a disability, as Tom McLaughlin does, can file a complaint with the Department of Labor and Regulation.

Even then, there are significant hurdles, according to James Marsh, the department's labor and management division director.

Claims about job loss over illness or disability make up about a fifth of the claims in a given year.

"We get calls about that every day," he said.

Only a fifth of all claims are substantiated. Employers can terminate someone who's disabled for poor attendance if attendance is considered an essential job function.

Marsh gave the example of a police officer who has to be on the beat.

"If they're not showing up, they're not fulfilling an essential job requirement," Marsh said.

If the state's lone claims investigator finds discrimination, which takes around six months, the resulting document can be used to file a civil lawsuit or a claim with the state's human rights commission.

Kristi McLaughlin

"It's the difference between a cop pulling you over for speeding and a judge deciding you've committed a crime," he said. "We're the cops … you're not going to be guilty of discrimination by virtue of the fact that we've found probable cause."

The state isn't the only avenue for claims of discrimination, of course. Federal discrimination claims go through the Equal Opportunity Employment Commission. The EEOC can look into claims about sex, race, age and disability.

If the federal agency finds that the company did not make reasonable accommodations, the EEOC can take action itself, fining employers for a violation regardless of potential lawsuits.

Mediation is possible through the EEOC, as well.

Proving discrimation can be tough

The couple feels he was discriminated against, but they realize that proving it could be an uphill slog.

The line offered to the McLaughlins was that he needed to be there as a supervisor. Tom McLaughlin had a hard time buying that. Bell went without a night supervisor for years before he started last June.

Operations at the packaging materials company had been re-worked with him in the night supervisor's role, McLaughlin said, but the work has been done without one.

"They said 'our hands are tied, we don't have any choice,'" Tom McLaughlin said. "I said 'Bell has a choice.' They didn't have much to say about that."

It's not as though he could come back to work tomorrow. Even with the hospital care, the infection is nowhere near gone.

He wears a wound vacuum over his shoulder that pulls fluid at a steady drip through a tube connected to the black-bandaged, plastic-wrapped divots in his leg. A nurse comes to empty the bag three times a week. Antibiotics are pumped into his arm daily.

He can't work on light duty for at least a few more weeks, and full healing is at least three months and thousands of dollars away.

He wants to work. He just can't. Not yet.

"I can't remember the last time I haven't been able to work," Tom McLaughlin said.

John Hult is the Reader's Watchdog for Argus Leader Media. You can call him at 605-331-2301 or 605-370-8617. You can tweet him @ArgusJHultor find him on Facebook atwww.Facebook.com/ArgusReadersWatchdog.

WHAT TO DO

If you feel you've been fired unjustly or discriminated against, there are a few places you can go to plead your case.

South Dakota Department of Labor and Regulation: 605-773-3681 or dlr.state.sd.us

Equal Employment Opportunity Commission: 1-800-669-4000 or www.eeoc.gov