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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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I have been on FMLA since Oct 29th and will end on Jan 21

Customer Question

I have been on FMLA since Oct 29th and will end on Jan 21 according to my employer. my doctor had me extended to March 1st just in case I needed extra time for physical therapy, after seeing him yesterday he said I could go back on Feb 1st (possibly sooner). I called my supervisor to update her, she stated she already sent me letter stating:
"Family Medical Leave will cover your position until January 21, 2016. Unfortunately, I am unable to hold your position for you until March 1, 2016 as you will have exhausted FMLA.
You will be terminated from employment effective January 22, 2016.
Please contact Washoe Tribe Human Resources Department for further instructions."....
My question, is this legal for my employer to be telling me that i WILL be terminated, before my FMLA is over?? They don't know if the doctor may release me before then.
there isn't any wording in this letter saying that if I am UNABLE to return by that date, then I would be terminated; it just says you WILL be terminated, effective January 22, 2016.
thank you for any help or information you are able to provide.
Deborah Tom *****
Carson City, NV (###) ###-####***@******.***
Submitted: 11 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 11 months ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

I think that the wording of your employer's email could have been better but that it is clear they meant to say that if you do not return by that date you will be let go. Obviously, if you are terminated before your FMLA expires (i.e. you are released for work early but you are fired before your FMLA runs out) you would have a claim for violation of the FMLA, but no legal claim arises simply from the statement that you "will" be let go.

There is another issue here posed by your employer's statement, though. This is the fact that while the FMLA does indeed only provide 12 weeks of protected leave, courts have consistently held that the Americans With Disabilities Act's requirement that employers "reasonably accommodate" disabled employees requires employers to explore the possibility of an EXTENSION to FMLA leave. The extension would only be for so long as it does not impose "undue hardship" on the employer, which is judged on a case by case basis. In some cases, no additional time wouldbe required because the employer is already suffering undue hardship, but in other cases an additional several weeks might be reasonable.

You may wish to remind your employer of this obligation under the ADA. Their firm statement that you "will" be terminated suggests they are not taking it into account.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

Expert:  Patrick, Esq. replied 11 months ago.

There have been some issues with the website. Are you getting my messages?

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