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Ask Tina Your Own Question
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 33166
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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I just came back from a medical disability leave of absence

Customer Question

I just came back from a medical disability leave of absence as of Sept. 1st. There were 2 comparable job opening which I interviewed and the outcome is that they decided to hire the temporary worker because "she already knew the process of the desk". The company was made aware of my return date more than a month ahead. My doc released me to 2 weeks part time building up to fulltime. Now they are saying they are willing to have oct.1st as my work end date. I feel that I was truly discriminated -"constructive dismissal" due to my medical leave as I returned as a fulltime regular employee. What right do I have at this point?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Tina replied 5 years ago.
Hello and welcome,

Were you on FMLA leave or some other type of leave?

How long were you out on leave?
Customer: replied 5 years ago.
I was on a medical leave from Oct 22,2010 and released back to work on Sept 1st. for 20 hrs a week leading to fulltime thereafter. My LTD will pay through Sept 14th. My employer on my 3rd month tried to terminate me via email but retracted everything the very next day which I continued to be an employee on mloa...This time they had me interview for 2 positions and say I was a hair close being selected and that they went with a temp who already knew doing the job.
Expert:  Tina replied 5 years ago.
I see.

There are typically no laws compelling the employer to return you to work after such an extensive leave unfortunately unless they have a written policy promising that you would be returned to work.

Given that, you would not have legal recourse against the employer unless you can prove they are discriminating against you based on a disability or other protected status. A cause of action for discrimination for taking medical leave is only viable typically where there is an applicable statute protecting your job. The FMLA normally protects your job for up to 12 weeks, but no longer. I'm sorry.

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