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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7649
Experience:  Significant experience in all areas of employment law.
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i have been on disability for 10 months after having back surgery

Resolved Question:

i have been on disability for 10 months after having back surgery and ready to go back to work as a store manager of 15 years and i havent got any reply if i can return. I fax over my doctors note to HR and no has called me back and its almost been a week. How long do I have to wait for there responds?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Good afternoon and thank you for entrusting me to answer your question. I am very sorry to hear about your disability and that your employer is not responding to your inquiries about returning to work.

When you ask how long you have to wait, what are you referring to exactly? The amount of time you need to wait before you can file for unemployment?

I very much look forward to helping you on this matter.
Customer: replied 1 year ago.


my back surgery is not a workers comp

Expert:  Patrick, Esq. replied 1 year ago.

I'm sorry, I don't follow your response to my question.

You had asked: " How long do I have to wait for there responds?" My question is, how long do you have to wait...until what? What exactly do you want to know?

If you can clarify for me I would be tremendously appreciative. I very much look forward to assisting you.

Customer: replied 1 year ago.


im ready to return to work with a doctors release note but my job is not calling me back to return to work. i m sorry i dont know how to explain in writing what i need to say . is there any way you can call me better please. thank you lourdes XXX-XXX-XXXX

Expert:  Patrick, Esq. replied 1 year ago.
Lourdes,

Thank you very much for your reply. Don't worry about your communication efforts, I am more than happy to work with you until things are absolutely clear. I am going to respond based on what I think you are asking and you can follow up with more questions if need be.

With regard to your employer getting back in touch with you and reinstating you in your position, there is regretfully no law which requires your employer to do these things. The only law which requires an employer to hold a sick or disabled employee's position is the Family Medical Leave Act. The "FMLA" only applies to certain employees at companies with 50 or more workers. However, even assuming that the FMLA did apply, the FMLA only protects an employee's job for 12 weeks. After 12 weeks, the employer can fire the employee even if the employee is still unable to return to work.

An employee in your circumstance who has been off work for 10 months would regretfully have no claim for violation of the FMLA because you did not return within the 12 week period in which your job would have been protected. Since after 12 weeks your employment is subject to termination, and since termination can be effected simply by refusing to get back in touch with you, your employer is free to ignore your communications regarding reinstatement, however unfair and unprofessional this is. There is simply no law requiring to the contrary.

I think the above is responsive to your question, but it may be that you are asking how long you have to wait after your first attempt to contact your employer before you can assume you are terminated and thus apply for unemployment benefits. If this is what you are asking, the answer is that there is no set period of time. Provided it is reasonably clear that employment will not continue, as is the case since you are being ignored, you can apply for unemployment benefits. Your employer will be notified, and they can either choose to permit the claim or hire you back, in which case your claim for unemployment benefits will be extinguished.

For information on how to file a claim for unemployment benefits with the EDD, visit this link: http://www.edd.ca.gov/unemployment/filing_a_claim.htm

I hope that this addresses your concerns, and I am truly sorry to the extent that the news I am providing is not favorable to your situation. I trust, however, that you can understand my limitations in explaining how the law actually operates under the circumstances and realize that it would be terribly unfair to you and unprofssional of me to lead you on with false but more favorable information.

Please do not hesitate to 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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you.

Very best wishes to you and thank you so much for coming to Just Answer.
Patrick, Esq., Lawyer
Satisfied Customers: 7649
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you

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Patrick, Esq.
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Significant experience in all areas of employment law.