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LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 36306
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I am on a workers compensation medical leave in california

Resolved Question:

I am on a workers compensation medical leave in california and was terminated from the company 3 days before i was scheduled to return to work with modified duty. i was called by HR and told not to come in. stating my FMLA ran out,but this is workers comp. also, the company states due to business my position was eliminated but nobody else on my team was laid off. this cannot be legal? What do I do I feel this is discriminatory due to workers comp. I have had two cases with my company and 6 surgeries total. Can they terminate me without trying to accommodate my working restrictions or offer me another job within the company?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  LawTalk replied 5 years ago.
Good afternoon,

I'm sorry to hear of your dilemma.

As regards XXXXX XXXXX's allocation of FMLA leave to a workers' compensation claim, in order to deduct the time spent on WC leave from an employee’s annual FMLA leave entitlement, the employer must notify the employee in writing that the workers' compensation leave is designated as FMLA leave and will count against, and run concurrently with, the employee’s 12-week entitlement.

Aside from that, the running of the FMLA leave does not allow the employer to terminate the employee solely based on the fact that the FMLA leave period is up---the rules of workers' compensation still prevent the employee from being terminated based on their being gone due to a temporary disability from an on the job injury.

Also suspect is the fact that they claimed your job was cut due to company financial issues. Frankly, it all smell bad, and it appear that you will have a viable cause of action.

In CA, a relatively recent court action resulted in the finding that a person may sue for discrimination based on being terminated because of a work related injury and the need to take time off. In fact, the case is very similar in facts to yours, and I strongly suggest that you first file a formal complaint of discrimination, and also seek the help of a local employment law/discrimination law attorney to assist you.

Here is a link to a synopsis of that recent case:

CA law prohibits discrimination in the workplace and you do have a legal remedy.

You will want to file a formal complaint with the CA Department of Fair Employment and Housing alleging discrimination.

You must first make an appointment with the Department to be interviewed, either over the phone or at a local DFEH office. You may call the DFEH at(NNN) NNN-NNNN or apply on line by using the Department’s "Online Appointment System." The system will guide you through questions to determine whether an appointment is right for you.

After you file the complaint, your employer will be prohibited from any retaliatory action against you. The DFEH will investigate your claim, and after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.

I wish you the best this holiday season.

Because I help people here, like you, for a living---this is not a hobby for me, and I sincerely XXXXX XXXXX abiding by the honor system as regards XXXXX XXXXX I wish you and your family the best in your respective futures.

Would you be so kind as to Accept my Answer so that I may be compensated for assisting you? Bonuses for greatly informative and helpful answers are very much appreciated. Thanks Again,


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