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Tina, Lawyer
Category: Employment Law
Satisfied Customers: 33166
Experience:  JD, BBA, recognized by ABA for excellence.
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I have been off work with a medical problem for two weeks on

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I have been off work with a medical problem for two weeks on a personal leave of absence my employer has already post my job and has told me that if I do not apply for and get a job within the hospital within two more weeks they are planning terminating me. Can they do that?

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. I am sorry to hear of your difficult situation. Before I can give you an accurate answer to your question, please provide the following additional information:

Do you know whether you are eligible for FMLA leave? Have you worked at least a year for the employer and a minimum of 1,250 hours during the past year? Does the employer have at least 50 employees?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 3 years ago.

No I am not eligible for FMLA. No I have not worked for the employer for. Yes it is the main hospital in Wichita Falls

I see. Thank you for clarifying that for me Heather.

I am very sorry to be the bearer of bad news, but without the protection provided by the FMLA, a federal statute, an employer normally is legally permitted to terminate an employee who is unable to work because of a medical condition. That is why the FMLA was passed, but unfortunately, it does not cover all employees.

If the employer has a policy promising employees that they will not be terminated if unable to work because of a medical condition, that could be enforced under an implied contract theory of law. But if they do not, then the employer would typically be free to terminate your employment if you are unable to work. However, you should apply for unemployment benefits as soon as you are released to work, since the state unemployment commission would not likely find that the employer had good cause for termination under these circumstances.

Finally, if you have a disability as defined under the ADA, the employer could be required to provide you leave time as a reasonable accommodation under that federal statute IF such leave is not an undue hardship to the employer.

If you have reason to believe your condition may be a disability under the ADA, please let me know and I would be happy to address that possibility further.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!


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