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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18809
Experience:  Employment/Labor Law Litigation
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If a person is returning to work from short term disability,

Customer Question

If a person is returning to work from short term disability, can an employer lay you off prior to the release date of the short term disability. I understand that there is no guarantee of expectation that the job one had will still be available but don't they have to at least find something that person can do?
Submitted: 10 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 10 months ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

That really depends on a few things. Short term disability is just insurance, so it doesn't create any legal requirement for an employer to allow a person to return.

The law that would require an employer to allow someone to return is the Family Medical Leave Act, but it only applies in certain situations. If you worked somewhere for a year before you went out on leave, the employer has at least 50 employees and you've only been out for 12 less than 12 weeks, then your right to return to work is secured by the FMLA.

However, that isn't even 100% true. The FMLA just disallows termination solely based on your being absent. If there is a layoff in effect generally, and a person on FMLA just happens to be among those selected (and the employer can show that the person would have been selected for lay off regardless of their FMLA use), then even the FMLA wouldn't stop a termination.

So, the answer to this question is based first on whether or not the person was on FMLA. If they were not, then they had no legal protection for their time off and could be terminated. If they were on FMLA but passed their 12 weeks of protected leave or if the employer can show a legitimate, non-discriminatory basis for selecting that person for lay off, then they could be terminated. However, if the employee was on FMLA leave, they hadn't reached 12 weeks and the basis for the termination was just absences, the employer would then by in violation of the FMLA and the employee could file a Department of Labor complaint.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

Expert:  Allen M., Esq. replied 10 months ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required.

If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.