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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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While on state disability and FMLA, I do not want to be off

Resolved Question:

While on state disability and FMLA, I do not want to be off work longer that twelve weeks. I do not want my position filled, thus losing my 26 year job! If I go back to work, and file again for state disability, what rights do I have in keeping my job; and what rights does my employer have to dismiss me?
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 4 years ago.
Hello and thank you for entrusting me to answer your question.

What is the specific medical condition that is causing you to miss work?
Customer: replied 4 years ago.
Intermittent back spasms, sore back. Newly discovered bone spurs developing. Basically back pain. This is not being filed as a workers comp claim.
Expert:  Patrick, Esq. replied 4 years ago.
Thank you very much for this additional information.

Even if you file again for SDI, your employer will be able to terminate you once your 12 weeks of FMLA protected leave have been exhausted unless your condition qualifies as a "disability" pursuant to the Americans With Disabilities Act definition.

The determination of what constitutes a qualifying disability is a complex issue, but in general, in order to have a “disability” you must have a mental or physical condition that “significantly impairs a major life activity.

According to the most recent Supreme Court decision, this analysis requires the courts to review whether the person is able to perform the tasks of daily living (washing, brushing teeth, fixing meals, housecleaning, etc.), and decide if the person is significantly more impaired in those tasks than other persons in the population who are not “disabled.” It also requires the courts to consider the person’s abilities with corrective devices, such as prostheses and medication, but may consider side effects that result from medication. For more information on what constitutes a qualifying disability, visit this link:

If a person is “disabled” in accordance with the ADA's definition, an employer may be required to extend the FMLA period of protected leave as a "reasonable accommodation" of the employee's disability. The length of the extension must be reasonable, and while there is no hard line for what is reasonable and what is not, the burden on the employer and the need to fill the position will be considered in assessing the cutoff. In most cases, a few additional weeks is not unreasonable.

Unless your back condition impairs a major life function (which I'm not saying it doesn't), an individual in this circumstance would typically have no further protection beyond the 12 weeks of FMLA, even if they went on disability.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
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