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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4986
Experience:  Extensive experience representing employees and management
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Went out on medical leave on the 24th of Aug for a knee replacement.

Customer Question

Went out on medical leave on the 24th of Aug for a knee replacement. And company HR had called and stated the 15th of Nov is 12 weeks out by federal law leave and after the 15th of Nov I could be possibly terminated for need to hire someone to work. And my doctor has me on medical leave until Dec 21. Is this correct?
Also I have been working from home since January with approval from HR for at least one year recommended by GP. Due to knee, sciatica and tail bone pain. Commute was 150 miles a day. Since that time working from home I was force to take a split shift and I was approved from HR to work morning shift early to get therapy in the afternoons. A couple months later demoted to a lesser position. And while on medical leave checking emails at work, I was demoted to even a lesser position and with extreme splits to bid again mostly now night shifts. I work in IT field and it is a global company. Never any issues and rated higher than average for work. In CA
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.

Have you been working while you are on FMLA leave or have you been completely off work since August 24th for your knee replacement surgery and recovery?
Customer: replied 1 year ago.

Yes I have been off since 24th August on medical leave and I have not been working. And before this I was working from home due to medical issues ok per HR and by my regular doctor.

Expert:  Joseph replied 1 year ago.
Unfortunately, if you are unable to return to work after 12 weeks of FMLA leave (which would expire November 15th) you are no longer protected by the FMLA provision that requires your employer to return you to the same or a similar position once you return from FMLA leave, so your employer could terminate you if you are unable to return to work for that time.

The only exception to this would be if you qualify as an individual with a disability under the Fair Employment and Housing Act and/or Americans with Disabilities Act.

If you qualify as someone with a disability then your employer would be required to provide you with a reasonable accomodation, as long as you can perform the essential fucntions of your job with an accomodation.

This accomodation can include additional time off that you need due to your disability, so if you are unable to return to work, I suggest that you do request a reasonable accomodation for the additional time off.

If you cannot return to work and are terminated as a result, I would also definitely reccomend that you file a complaint with the Department of Fair Employment and Housing for discrimination in violation of the Fair Employment and Housing Act.

You can do so using the instructions available online here:

http://www.dfeh.ca.gov/Complaints_eCompProc.htm

The Department of Fair Employment and Housing will investigate your complaint on your behalf and either file suit on your behalf or issue you a right to sue letter so you can pursue your claim against your employer through a private attorney.

I sincerely wish I had better news to give you, but I hope you appreciate a direct and honest answer to your question.
Expert:  Joseph replied 1 year ago.
Please remember to rate my answer positively so I get credit for my work!

Or, please ask any follow up questions that you have.

Thanks and best of luck!

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