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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
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Experience:  Employment/Labor Law Litigation
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I am on disability leave due to total knee replacement on May

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I am on disability leave due to total knee replacement on May 7. On May16, my boss called me and told me the company was restructuring and my job was eliminated. I thought you couldn't be fired when on disability. Should I look in to this?
Submitted: 5 years ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 5 years ago.
Thank you for using Just Answer. Between my law practice and other law related jobs, I have over 13 years experience. I look forward to assisting you.

How many employees does the employer have? More than 50?

How long have you been with the company? More than a year? Were you a full time employee?

How long have you been out of work? I'm assuming, from the facts, that you were out less than 12 weeks this year.
Customer: replied 5 years ago.
My company has several thousand employees. I have been with the company almost 20 Years (in August). I have been out since the day of my surgery May 7. I am 74 years old.
Expert:  Allen M., Esq. replied 5 years ago.

The rule on termination while you are out for medical issues is not that you are immune to termination.

Rather, the rule is that you are not allowed to be terminated as a punishment for being absent due to your medical issue for up to 12 weeks. This is protection granted by the Family Medical Leave Act.

Now, if an employer can cite a legitimate, non-discriminatory reason for the termination and can show that your absence was not the basis for your selection, then the termination can be legal. For instance, if an employer had a list of people selected for lay off on a specific date, but then after the generation of that list one of them goes out on FMLA, that person can still legally be terminated. The employer would have good evidence, the list, that the medical leave was not the basis for that person's selection.

Here, we don't know what basis the employer might allege, but you can be sure they will try to allege some reason why you were selected.

I would contact the Department of Labor in your state to file an FMLA discrimination claim and force the employer to put forward a believable, non-discriminatory reason for your selection for this restructuring...a reason that you'll be able to attack,.
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