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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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Unfortunately, due to 2 back surgeries, 3 pins implanted in

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Unfortunately, due to 2 back surgeries, 3 pins implanted in my SI Joint, 10+Surgical injections, Prostrate Cancer and the resulting Radical Prostrate-ectomy, I have been on medical leave for the entire Short Term leave and 20 months on the long-term leave.

On top of that, I am approaching 64 year of age.

Doctors have decided that can't fix the problem and further surgery has a 60% chance of making the situation worse. They are trying to minimize my pain through medication, while reducing my need for 10+ Percocets/day and other controlled substances.

I am still listed as an employee with Oracle and very much want to return to work, if at all possible.

Will my company have any obligation to bring me back, even if in another position? Am I protected under the rules of Long-term Disability or because of my age,

To my knowledge, No One in my group has been Laid-off during the entire time I have been gone.

If I have No protection, will they be required to give me the standard severance package, which has been 3 months plus 1 weeks for every year of service?

I appreciate your thoughts.

Warren Weston [email protected]

Thank you very much for your question this evening. I am very sorry to hear that your health problems have kept you away from work for so long.

Since Oracle is a company with far more than 50 employees, an individual in your circumstance would be entitled to the protections afforded under the Family Medical Leave Act assuming that you had been an employee full-time for more than one year prior to your absence.

The FMLA permits employees with "serious health conditions" to take up to four months off of work unpaid and return to their same position or an equivalent position once they get better. The thing with FMLA leave, however, is that it only protects an employee who is absent from work for up to four months. Beyond that period of time, an employer is typically free to terminate the employee, even if the employee is still sick and unable to work.

For absences extending beyond four months, there is really only one potentially applicable protection. Specifically, if an employee's health condition qualifies as a "disability" under the Americans with Disabilities Act, his or her employer may be obligated to extend the period of protected FMLA leave for an additional several weeks or months as a reasonable accommodation of that employee's disability. In order for an employee's health condition to qualify as a "disability" under the ADA, that employee's health condition must "impair a major life function."

The health problems you have been battling may very well qualify as a disability under the act. Assuming that ADA protections apply, an employer cannot simply terminate an employee who is absent due to his or her health condition. Rather, the employer must engage in an interactive process to determine whether any reasonable accommodation can be made that would allow the employee to retain their employment. Courts have consistently held that an extension of FMLA leave is a "reasonable accommodation under the law and typically must be afforded when possible.

The amount of time which an employer must extend the FMLA period is not set by statute. Rather, it is determined by whether the employer will experience an undue hardship by allowing me FMLA leave to continue. To be entirely honest, an extension of the FMLA leave period by an additional 16 months would probably not constitute a reasonable accommodation under most circumstances, As it is simply unrealistic to demand an employer to hold a position vacant for almost two years.

However if any legal protections did apply to an individual in your circumstance, it would be the protections afforded under the ADA.

In regard to your question about severance, I am very sorry to tell you that an employer typically has no legal obligation to provide severance to an employee who is laid off or fired. The only notable exception to this rule applies in cases of mass layoffs, but that would not be relevant to your circumstance.

It is my sincere hope that you find my answer enlightening, even though the law is not entirely favorable to your circumstance. I truly wish I could provide you with better news. It trust you will understand that I am limited to telling you what the law actually provides for under these circumstances.

The above in mind, I would be very grateful for a positive rating if my service has been acceptable so that I may receive credit for assisting you.

Thanks you and very warmest regards.
Customer: replied 4 years ago.
If Oracle continues to hire people and if I qualify for those positions, would I get any preferential treatment, or is it, "It's been nice knowing you and please return your computer & badge"?

Thank you very much for your reply. Regretfully, an employer is under no obligation to give hiring preference to individuals who were lawfully let go, assuming that termination of an individual in your circumstance would in fact be lawful.

This basic discretion stems from the doctrine of at will employment, which provides that an employer may hire and fire employees as it pleases, provided such decisions are not discriminatory in nature or otherwise in violation of California or federal law.

I sense your frustration with the law and not only do I completely understand it, I am wholeheartedly sympathetic. Notwithstanding, it is my hope that I have provided you with a clear explanation of the law as it applies to these circumstances and, if so, that you will provide a positive rating of my service.

Very kindest regards.
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