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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19770
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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After being out months because I fractured my leg at work

Customer Question

after being out for 34 months because I fractured my leg at work upon arresting a suspect I was terminated after I had turned in a release form with no restrictions. when I turned in my release form I was told to wait because they were going to check the status of my job. a week later I had a meeting with human resources and chief of police who stated said comment your position has been filled so you no longer have a job and because of policy I was out more then 22 weeks. what I don't understand is if my position had been taken then why did I still have my badge uniforms and duty belt and I checked around and I was told by police officers that my position had not been taken they were still lacking a sergeant. I don't know what happened that I was terminated after I had been released to return and if they really wanted to go by policy they would of called me in long before my release. I was injured at my job doing my duties and after all the financial problems myself and my family have gone through along with the pain I went through I cant believe they can do this to me. to me this was wrongful termination if someone knows if I have a case please notify me
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.

Hello,

Thank you for the information and your question. Although no one without all of the information from both sides can tell you if you would have a successful case for wrongful termination, I can discuss the law with you and tell you what your rights are now.

It sounds, from your post, as if there is either a written policy or contractual right to be given up to 22 weeks of sick leave in these situations and that you stayed out beyond that period. That would normally be enough for the employer to be allowed to terminate an employee. In other words, there is no law that says an employer must hold open a job for an injured worker indefinitely, or beyond the 12 weeks provided under FMLA or job protection. Obviously you had more protection via this policy or contract you referred to.

Having said all that, there is another law that applies in these cases and that is the Americans with Disabilities Act (ADA). Under the Act, if an employer needs more time off than allowed under an attendance policy, then the employer must grant that time unless doing so would cause an undue hardship on the employer. The employer must actually make that evaluation. If they fail to even consider the ADA or deny the time by not giving the employee a job back, then the employee may file a complaint with the EEOC. They may also, after filing with the EEOC, file suit for disability discrimination under the Act. Likewise, if the employee is let go, not because of the fact that their job is filled but instead because of their injuries or WC claim, that too would be a violation of the ADA.

What you can do, and probably want to at this point, is to file your complaint with the EEOC and let them try to mediate your case to some acceptable resolution. If that doesn't work, they will investigate your case and you will also want to find a local employment law attorney though the local County Bar referral service to sit down with and discuss your case in detail.

The fact that you still had your work equipment really is not determinative of the issue, but is just one piece that the EEOC and the courts would look at.

Please feel free to ask for clarification. I would be glad to attempt to assist you further. If not, please take a moment to leave a positive rating in the box above so that I can receive credit for assisting you. Thank you

Expert:  Marsha411JD replied 1 year ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 17th. For some unknown reason, the Experts are not always getting replies or ratings (at the top of the question/answer page you are viewing orin the pop up box for this question), which is how we get credit (paid) for our work, that the customer thinks have gone through. In your case I received neither. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator. Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/

Thank you.