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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5497
Experience:  Exclusively practice labor and employment law.
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I have been on disability from my job since May 2013. They

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I have been on disability from my job since May 2013. They are now making me resign from work because when I spoke to them in September I still did not have a surgery date or a return date for them. Can they do this to me?
Hi, thanks for submitting your question today. My name is XXXXX XXXXX I’m happy to assist you with your question today. I'm sorry to hear about your job loss.

Unfortunately, medical leaves in excess of 12 weeks have no legal protection. That is to say, unless you have some sort of contractual guarantee from the employer via its contracts, policies or handbook that you be allowed leave in excess of 12 weeks and a guarantee to your position, then there is no protection. Most employees do not have such a contractual guarantee to be able to return to their jobs and are thus limited only to the protection of the Family and Medical Leave Act (FMLA), which only requires the employer to preserve the employee's job for a maximum of 12 weeks.

Thus, unless you are one of the rare few that has such a contractual guarantee to be returned to your job beyond the time allowed by the FMLA, then the forced resignation is legal. You still would be entitled to your disability insurance (assuming you have one and its an employer policy) as long as you are considered "disabled" by the doctors; this coverage does not end with your employment, and you'd be entitled to COBRA health insurance continuation for up to 18 months...often times though you can find better rates for yourself in the self insured marketplace.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

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