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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1840
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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If the FMLA has exhausted but you are still unable to return

Resolved Question:

If the FMLA has exhausted but you are still unable to return to work can you be terminated from work? I was in a motorcycle accident and the doctor gave me add'l time off. I received a letter form FMLA stating it was exhausted. Is FMLA the same thing as disability? I'm extremly confused.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hello and thank you for your question today.

Employment-LawExpert :

Are you online with me?

Customer:

yes. im here

Employment-LawExpert :

Welcome to the chat

Customer:

thank you

Employment-LawExpert :

the FMLA and CFRA give you 12 weeks of unpaid leave in which your job is protected. After that, in order to receive protection, you can try to use an argument under the ADA, but it gets a bit tricky.

Employment-LawExpert :

there are two types of disability. SDI, and whatever your company gives you.

Employment-LawExpert :

this is a form of payment, while disabled, however, it does not offer you any job protection.

Employment-LawExpert :

As for being protected under the ADA, (as well as FEHA and UNRUH) the law states that a company may not discriminate against a person because of their disability.

Employment-LawExpert :

Courts have oftentimes held that if you are able to return in the next week or two after your FMLA leave has been exhausted, this can be seen as a reasonable accommodation and may be granted.

Employment-LawExpert :

However, your job is only guaranteed to be protected for 12 weeks.

Employment-LawExpert :

After that, your employer may fire you, but you may claim that your firing was as discrimination based on your disability. Then, the courts will weigh if the employer had a legitimate business interest to let you go

Employment-LawExpert :

If you have no exact return date, then courts almost always side with the employer

Customer:

The doctor stated that I may return to work in October 20 - Can my employer can my employer still fire me before that?

Employment-LawExpert :

If you have an exact return date, then they look at other employeees in the company and whether or not they received extended leave

Employment-LawExpert :

Your employer can legally fire you after 12 weeks of the start of your leave as long as that firing is not as discrimination for your disability.

Employment-LawExpert :

Does that make sense?

Employment-LawExpert :

In your situation, the best course of action would be to go to the employer (hr) and request a reasonable accomodation to remain out on leave until October 20

Customer:

Yes, it does make sense but since I was in a motorcycle accident I'm unable to fully perform my job until Oct. 20 - what does reasonable accomodation to remain out on leave mean?

Employment-LawExpert :

So if a person has a disability, they can request a reasonable accommodation to do the essential functions of their job. If the company agrees to it, and then fires you, you would have a guaranteed discrimination lawsuit against them. In you asking, you still may have a claim if other people in your company have been out on leave longer than 12 weeks and didn't loose their job.

Employment-LawExpert :

So you go to HR and you state Can I get a reasonable accommodation under the ADA to return to work on October 20, and you put this in writing.

Employment-LawExpert :

either in an email or in a letter, sent certified, return receipt.

Employment-LawExpert :

Because that letter opens them up to a discrimination lawsuit if they have kept other people on longer than the 12 weeks.

Employment-LawExpert :

Does that make sense?

Customer:

yes, but I dont know of anyone else in the company that's been out for longer than 12 weeks.

Employment-LawExpert :

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver 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. After 12 weeks, unless you have a showing of being discriminated against because of your disability, your employer would legally be allowed to terminate your employment.

Employment-LawExpert :

So while requesting a reasonable accommodation would not guaranteed protect your job, it may require the company to give you the leave if they decide to grant it for fear of a disability lawsuit.

Customer:

ok. thank you for your help. I'll contact HR today in writting and see what happens.

Employment-LawExpert :

Not a problem. Have I fully answered your question today?

Customer:

yes, just one more thing... is FMLA the same thing as DISABILITY?

Employment-LawExpert :

no, they are different things.

Employment-LawExpert :

FMLA gives job protection for a serious health condition

Employment-LawExpert :

Disability pays you for being disabled, but does not give you job protection

Employment-LawExpert :

FMLA is unpaid, but can run concurrently with PTO and DIsability payments

Customer:

I understand stand. Thanks!

Employment-LawExpert :

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, 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.

Employment-LawExpert :

Have a wonderful rest of your day.

Customer:

Thank you very much for your time and help!

Brandon, Esq., Lawyer
Satisfied Customers: 1840
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you

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Chat Now With A California Employment Lawyer
Brandon, Esq.
Brandon, Esq.
California Employment Lawyer
1840 Satisfied Customers
Has received a certificate of recognition from the California State Senate for his outstanding legal service.