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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17599
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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I am 58 years old, in February I had to have 2 amputations

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I am 58 years old, in February I had to have 2 amputations on my lower left leg. After 20
visits with a Physical Therapist I am able to get around with a walker. I am receiving long term disability payments thru my employer, but have now exceeded my FEMLA time and they would like me to resign or retire. what should I do?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. We cannot tell you what you should do since this is not a Site where we can form an attorney-client relationship, which would be necessary in order to give legal advice or a legal opinion. The Site TOS do not allow us, as Users of this Site to do so.

That said, if you would like for me to discuss the law and your options, as they relate to the facts of your case, I would be more than willing to. If you want to continue, then I will need to know what State you work in and whether you are in a union? Also, do you need accommodations from your employer in order to perform the essential functions of your job and have you asked for an accommodation of more time off or for performing your duties? If so, what did your employer say? Finally, are they saying that because of their attendance policy, that if you cannot return to work they will have to let you go if you do not retire or resign?
Customer: replied 1 year ago.

I work in Arizona, non-union, and a Multi National Company, at this time I do not need special accommodations. They have allowed the additional month off.

Expert:  Marsha411JD replied 1 year ago.
Thank you for your reply. However, I still need clarification on whether they are telling you that if you do not resign or retire at the end of this month, that they will terminate you for not being able to meet attendance requirements.
Customer: replied 1 year ago.

Sorry, Yes.

Expert:  Marsha411JD replied 1 year ago.
No problem, I asked a lot of questions. Thank you for confirming that. Normally, under Arizona law, and employer is free to terminate an employee who cannot meet attendance requirements unless they have the protection of FMLA or a contract, or company policy. However, an employee who is disabled and has been on FMLA can request a reasonable accommodation by way of additional time off. Then under the ADA, the employer must accommodate them unless they determine that "(1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship." (on the employer.) You can see a more in depth discussion of reasonable accommodations under the ADA by going to: http://www.eeoc.gov/policy/docs/accommodation.html#leave

So, unless your employer can meet one of the two tests I mentioned, they must allow you extra time off, even if they have a neutral attendance policy.

If you want to protect your legal rights under the ADA, then it would generally be ill-advised to resign. Instead, it would usually be better to force the employer to take the adverse employment action. That way you would have more facts in your favor for a wrongful termination/discrimination case under the ADA that you could file with the EEOC and sue for.

I don't know what the retirement policy is with your employer, but I would assume that you are still entitled to any pension or retirement benefits you have accrued whether they let you go due to attendance or whether you resign. So, unless you know that you will lose everything if you are let go for attendance, then the answer for retirement would be the same.

Ultimately though, if you know you will never be able to return to perform the essential functions of your job, with or without accommodations, then you might want to consider retiring and applying for Social Security Disability if you cannot continue to work and are not yet qualified for regular SS benefits.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17599
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
Marsha411JD and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank You for your answer, I really appreciate it. I wish you worked in Arizona. Then we could form that attorney/client relationship and I would be able to discuss more.

Expert:  Marsha411JD replied 1 year ago.
You're very welcome. If it comes down to where you feel that your employer is trying to force you to take action and you are unsure what to do, then you really will want to sit down with a local employment law attorney to get them involved. You would need a local attorney ultimately if you decide to file suit for discrimination or wrongful discharge anyway.

Best of luck to you with your health and your job.

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