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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6692
Experience:  Significant experience in all areas of employment law.
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My father was just terminated from his full-time position and

Resolved Question:

My father was just terminated from his full-time position and while on leave per doctor's order collecting disability due to work related stress issues and other health issues, he is also in the process of applying for worker's compensation in California. Can his employer legally let him go?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. I am so sorry to hear about your father's termination, especially given the circumstances with his health.

Can you please tell me if he was on FMLA-protected leave? He would know if he was, because it must be specifically applied for and approved.

I look very much forward to assisting you.
Customer: replied 2 years ago.
He had applied and was approved, the twelve week period has been exhausted May 24th although his doctor ordered additional time off due to a first surgical procedure and now second surgical procedure.
Expert:  Patrick, Esq. replied 2 years ago.
Thank you very much for this information. What was the physical ailment for which he had surgery?

This is my last question and then I will be able to provide an answer.
Customer: replied 2 years ago.
My father has diabetes and was given a swing/night schedule at work. After dealing with the off hours for awhile he went to see his doctor, his doctor recommended and provided a letter for his employer stating that my father should try to be accommodated due to health reasons. My father then experience chest pains one day while on the job and luckily works at a hospital, they determined the pain was caused by stress and anxiety. Doctor recommended time off, father applied for FMLA and was approved. During this time, he was experiencing vision issues due to the diabetes that worsened as he worked the off hours. He was diagnosed with Macular Edema and had surgery in one eye. He has just been informed that his other eye will need surgery. To sum it up, original physical ailment was due to stress related issues but was further complicated by his eye surgery that was caused by his worsening diabetes from working swing/night hours.
Expert:  Patrick, Esq. replied 2 years ago.
Thank you again for this additional information.

Generally speaking, an employee is entitled to only 12 weeks of protected leave pursuant to the FMLA, after which he or she may be terminated pursuant to the "at will" doctrine of employment. However, one important exception to this rule is if the employee has taken FMLA leave to rehabilitate from a health condition that qualifies as a "disability" pursuant to the Americans With Disabilities Act.

If an employee takes FMLA protected leave for an ADA disability, his or her employer may be required to provide an extension of the protected 12 week period as a "reasonable accommodation" of the employee's disability. The length of the extension depends on what is reasonable under the circumstances, but in any event, the employer must engage in an interactive process with the employee to determine what accommodations can be arranged.

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.” For more information on what constitutes a qualifying disability, visit this link: http://www.ada.gov/qandaeng.htm

Under many circumstances, diabetes and related health conditions can qualify as "disabilities" under the ADA.

So to summarize, while an employee is ordinarily only entitled to 12 weeks of protected leave after which they may be terminated pursuant to California's doctrine of "at will" employment, if an employee has a disability pursuant to the ADA, they may be entitled to a reasonable extension of the 12 week period.

At the very least, an employer must engage in an "interactive process" with the disabled employee to determine whether some sort of accommodation, including potentially an extension of the FMLA leave period, may be offered prior to terminating the employee.

If an employee in your father's circumstance had a "disability" as defined by the ADA and his employer did not offer an extension of his FMLA leave as a reasonable accommodation, hemay have a legal cause of action for wrongful termination and violation of the ADA which he can pursue either through the Equal Opportunity Employment Commission (a federal agency) or California's Department of Fair Employment and Housing.

For information on how to bring a claim through California's DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm For information on how to bring a claim through the EEOC, visit this link: http://www.eeoc.gov/employees/charge.cfm

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

My absolute greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Also, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Patrick, Esq., Lawyer
Satisfied Customers: 6692
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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