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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4821
Experience:  Extensive experience representing employees and management
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My son is on disability and his employer is trying to fire

Resolved Question:

My son is on disability and his employer is trying to fire him. Can his employer legally do this? What recourse do we have?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Joseph replied 2 years ago.
Hello and welcome to JustAnswer.

If your son is on FMLA protected leave (12 weeks of unpaid leave) then he cannot be terminated while he is on disability.

Even if your son is not on FMLA leave, if he is able to perform the essential functions of the job by being on disability, then he could still have a claim for discrimination in violation of the Americans with Disabilities Act if he is terminated while on disability.

Your son can file a complaint with the Equal Employment Opportunity Commission if he is terminated while on disability.

He can file a complaint using the instructions available online here:

http://www.eeoc.gov/employees/charge.cfm
Customer: replied 2 years ago.
I believe he has been on disability for 12 weeks already or at least quickly approaching it. He is in the military and has had to take time off previously from work on a few occasions for additional education/training. His boss has been trying to get rid of him for a while now because of this. My son is on disability because of an injury to his shoulder and his Dr. told him his is not to lift anything heavy. He works at a refinery where the job requires heavy lifting and at times climbing heights of 100 plus feet. My son is at present out of state doing more military training however not in the field it's in a classroom setting. He most likely will be shipping off to Afghanistan shortly after he returns. Does he have a chance or any legal standing in keeping his job for when he returns?

Thank you
(I sent this previously not sure if you received it, sending it again just in case.) Much appreciated
Expert:  Joseph replied 2 years ago.
Thank you. I didn't receive the previous response, so thanks for retyping it.

Unfortunately, if your son is unable to perform the essential functions of the job, which requires heavy lifting, he can be terminated while he is on disability leave, if he has exhausted his protected FMLA leave of 12 weeks.

Customer: replied 2 years ago.
If he has not exhausted the 12 weeks or at least goes back to work when the 12 weeks is up (I am not sure of the exact time he has been on disability) and then after returning to work is deployed can they still let him go? Or is this a separate issue? If so would he need to go through the military to dispute it?
Expert:  Joseph replied 2 years ago.
If your son is able to return to work prior to the 12 weeks of FMLA leave, and is then deployed, he would have a right to be reemployed when he returns from deployed under the Uniformed Services Employment and Reemloyment Act.

The law is enforced through the Veterans' Employment and Training Service Division of the Department of Labor.

If his employer refuses to employ him after he returns from deployment, he can contact them to file a complaint.

Here is a list of contact for the Veterans' Employment and Training Service Division in California:

http://www.dol.gov/vets/aboutvets/contacts/main.htm#California
Customer: replied 2 years ago.
Joseph,

You have been most helpful, much appreciated.

Carla
Expert:  Joseph replied 2 years ago.
Thank you; best of luck!
Joseph, Lawyer
Satisfied Customers: 4821
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you

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