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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4868
Experience:  Extensive experience representing employees and management
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My doctor put me out on disabilty yesterday and is sending

Resolved Question:

My doctor put me out on disabilty yesterday and is sending the paperwork to my employer. My employer has been trying to terminate me since my last bout with my illness. Can they terminate me before they get the paperwork? I just spoke to my doctor and it was mailed yesterday and dated yesterday. I did not think that they could but my employer just emailed me saying I would be getting a letter in the mail over nighted to me and then they blocked all my access to my work site as I am an outside sales rep and have a home based office. I am freaking out right now. Your help with this question is appreciated. I am in Riverside, California. Heidi
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Are you going to be taking a form of protected leave (such as FMLA leave) or are you just going out on regular disability?
Customer: replied 1 year ago.

I am going out on California state short term disability.

Expert:  Joseph replied 1 year ago.
Unfortunately, your employer could terminate your employment before it receives the paperwork for your disability.

Also, unfortunately, if you are only going on short term disability, you are not neessarily protected from being terminated while you are out on disability.

Unless you are on FMLA leave or another form of protected leave, your employer is not legally prevented from terminating you while you are out on disability.

This wouldn't affect your ability to continue to receive SDI, but, unfortunately, there is nothing illegal about your employer terminating you while on disability.

If you are still able to perform the essential functions of the job, however, you would have a claim against your employer for discrimination in violation of the Fair Employment and Housing Act, but you'd likely need to demonstrate that you could return to work with a reasonable accomodation in order to prevail on a discrimination claim to the Department of Fair Employment and Housing.

I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate a direct and honest answer to your question.
Customer: replied 1 year ago.

Just a bit more information. I have a class action lawsuit pending and they have been trying to terminate me and have retaliated against me saying my performance is not good enough even though I have proof that it is and have already responded to that. Do you think that will effect this differently. I was also told that in California, one can not be fired while out on disability. Is it just that they have not received the paperwork? And the paperwork is dated yesterday and I still have sick time available.

Expert:  Joseph replied 1 year ago.
What is the lawsuit for?

No, unfortunately, this is not the case. An employee can be terminated while out on disability in California if they aren't on another form of protected leave, so it wouldn't matter whether your employer receives the paperwork for your disability or not.
Customer: replied 1 year ago.

I am still confused as a California attorney had told me in the past that while I am on state disability I can not be fired. I was thinking they were trying to pull a fast one on me by not receiving the paperwork...I am just really confused...what state do you practice law in?

Expert:  Joseph replied 1 year ago.

I am a California attorney and practice law in California. I am an expert in California Employment Law.

 

Whoever told you this was misinformed and wrong.

 

 

There is no legal protection from being terminated while you are out on disability in California if you are not on FMLA leave as well.

 

 

 

Customer: replied 1 year ago.

The company is too small to be eligible for FMLA.


The lawsuit is a class action lawsuit as they do not pay car allowance or mileage and force us to use our own computers as well as fax machines etc. It all started when I was out on disability before and they gave out my personal information to a man who had been stalking me so I contacted an attorney who then began asking me more questions about the company and that is how I ended up in the class action suit. Is there any legal recourse that I have? It seems the class action legal team is more out for what they are going to get out of this than helping me.

Expert:  Joseph replied 1 year ago.
Yes, you would have a cause of action for wrongful termination in violation of public policy if you are terminated for your participation in the lawsuit.

This is due to the fact that your suit about a labor code violation caused you to be terminated. You would need to be able to demonstrate that this was the reason why you were terminated.
Joseph, Lawyer
Satisfied Customers: 4868
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you

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