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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11286
Experience:  Significant experience in all areas of employment law.
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I live in California and was recently on medical leave due

Customer Question

I live in California and was recently on medical leave due to pulminary embilisms. Upon returning to work, I have had several problems doing my job. Most if not all has been caused by the amount of stress my employeer has put on me since returning. My doctor says I have a case for stress leave and has documented it. What do I do and how do I do it?
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 4 years ago.
Hello and thank you for entrusting me to answer your question. I am so sorry to hear about your medical condition and the difficult you are experiencing at work.

Can you please tell me if your company employs 50 or more people and how long you have been employed there?

I very much look forward to assisting you regarding this matter.
Customer: replied 4 years ago.
This is a large company with several locations. There are only 10 employees at my location, but the company has thousands of employees and more than 50 in the surrounding area.

I started working there in May of this year.
Expert:  Patrick, Esq. replied 4 years ago.
Renee,

Thank you so much for your reply.

An individual in your circumstance may be eligible to make a claim to collect short term disability insurance if you can show that you are suffering from a physical condition that renders you unable to do your regular or customary work for at least eight consecutive days. The problem is that short term disability insurance (often referred to as "SDI") does not provide any sort of job protection. So, while you may be able to claim SDI, there would be nothing stopping your employer from firing you while you are gone.

The only form of protected leave is that leave afforded through the Family Medical Leave Act. The FMLA provides up to 12 weeks of unpaid protected job leave for qualifying employees at companies with 50 employees or more. The problem in your instance, however, is that in order to be a "qualifying employee," you must have worked for at least one year for your present employer, and you indicate that is not the case. Thus, FMLA would not be an option.

The only other circumstance in which an employee's job may be protected while they are absent is if the condition for which they are taking leave qualifies as a "disability" pursuant to the Americans With Disabilities Act.

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.” There is no "list" of conditions that qualify, but if you can show that your pulmonary embolisms impair a major life function, then you may qualify for ADA protection. For more information on what constitutes a qualifying disability, visit this link: http://www.ada.gov/qandaeng.htm

If a person is “disabled” in accordance with the ADA's definition, is having difficulty performing his/her job, and the employer knows that the reason for the difficulty is the employee’s disability, then the employer may have a duty to reasonably accommodate the employee, as long as it will not pose an undue burden on the employer to do so. Reasonable accommodations may include intermittent leave or a modified schedule, which may allow you to take some time off to recover.

Aside from claiming ADA protection, an employee who does not qualify for FMLA leave would have no job security in the event they require time off due to physcial ailments.

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver what is at least partially bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

Please let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.

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