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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 32136
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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I was on 7 months disability leave due to cancer. I am 61 years

Resolved Question:

I was on 7 months disability leave due to cancer. I am 61 years old, 16 years tenured employee. When I informed my employer that I am now cancer free and ready to resume
work, I was told that my position is eliminated. The entire accounting will be phase out
in 90 days to be handled by main office. My question is that, why am I the first one to be
Let go while the person that was hired in my absence is retain?

They offered me 13 weeks of severance fee, yet I am very well aware that they have paid
2 to 5 weeks of fee on employees that worked less than a year.

Do I have a case here? I am feeling depressed over this situation.

Mary M Sanchez
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Tina replied 2 years ago.
Hello and welcome, Mary.

A huge congratulations on winning your battle with cancer. My father is currently going through extended treatments, and it is emotionally and physically challenging to say the least.

To answer your question: Pursuant to state and federal law, employers must normally provide up to 12 weeks of unpaid leave to employees who have a serious medical condition. You exceeded that period of time, so the job protecting aspects of the FMLA and state counterpart would have lapsed unfortunately.

After the 12 weeks and you were no longer able to work, the ADA could require the employer to extend your leave as a reasonable accommodation unless it was an undue hardship for them, and providing that you requested the accommodation.

If it was an undue hardship for the employer not to replace you for the 7 months, then they would typically be relieved of their obligation to return you to work following leave.

Here is a link that discusses what is an undue hardship under the ADA:

http://www.eeoc.gov/policy/docs/accommodation.html

The employer is not required by law to provide severance to employees, except according to an employment contract or a written policy communicated to the employees. So if there is a policy of paying a certain number of weeks severance for each year of service, the employer should pay that to you if you do not return.

I hope you found my answer helpful, even if the law is not in your favor. I would be happy to clarify my answer if anything is not clear or you are looking for additional information. All the best to you!

Tina, Attorney
Satisfied Customers: 32136
Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
Tina and 2 other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

The temporary help was hired 2 days after the start of my disability leave of absence.

At the end of my 90 days, communicated with HR Director that I have to undergo chemo treatments and unable to return within the 90 days. She responded not to worry and just for me to get better. I have been in constant contact with her the entire duration and never inform of any issues or problems regarding my employment.

Even if severance fees are not in writting should employer practice fairness and

equality in dealing with employees? Working in the accounting department made me aware that it has been a practice for them to give severance fees to less tenured employees.

Expert:  Tina replied 2 years ago.
Yes, the employee should certainly treat similarly situated employees consistently since unfairness can give rise to a claim of discrimination based on disability or other protected status.

If you do not believe that the covering for you while you were out for 7 months was an undue hardship or that the employer is not offering you severance consistent with the past practices or stated policy, then it would be best to retain a local attorney to represent you in this matter.

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