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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18855
Experience:  Employment/Labor Law Litigation
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I was injured at work July 16, 2015 and have not been

Customer Question

I was injured at work July 16, 2015 and have not been allowed to return to work since. The injury was on my left arm, which I was told I have a partially torn mcl, a partially torn pronator teres, a small bone fragment chipped off, and now I have a lot of scar tissue built up and I can't fully straighten my arm or lift things well. Ive been on light work restrictions since the injury, but my boss has refused to accommodate and so I have been at home the whole time. Yesterday, 1-25-16, I was told that they are allowed to terminate me after 6 months because of a stipulation in FMLA because I can't perform my full work duties. Are they allowed to do this even though the reason I can't perform normal work duties at work is due to a work injury that has not been properly treated by the insurance? Also, are they allowed to refuse to accommodate work restrictions and send me home, then fire me for not being at work for so long when it was their decision to keep me from working?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year 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.

Unfortunately yes, they can terminate your employment after 6 months. Actually, they could have terminated your employment after 12 weeks, so 6 months is beyond the legally required protected time off from work.

The FMLA doesn't require that you be given reasonable accommodations at work. It only requires that you be given time off for medical issues, and that protected time off runs out after 12 weeks.

The ADA requires accommodation, but you have two potential issues here. First, an injury is not generally considered a disability because there is the likelihood of improvement or correction over time. Second, even the ADA doesn't require an employer to allow light duty if that means the person can't do the essential functions of the job. This is a tricky area though. A clear example is a pilot that loses his/her vision. They don't have to be kept on the payroll and they can't perform the essential functions of the job.

So, the only way you'd have any sort of argument here is if you can prove this is a disability AND that you made a request for accommodation under the ADA and that was ignored. You can certainly argue that to the EEOC in your state, which is a government agency that would listen to your claim and investigate it for free. I just want you to understand the hurdles involved. You have to establish this as a long term disability and if your WC claim is ongoing, that can be difficult to do. You also have to prove that you can perform all the essential functions of the job, because the employer will certainly say that you can't and, if you can't, it's legal to terminate you.

This all brings things back to your WC claim. If you can't work for this employer that really just increases the validity of your WC claim and ultimate settlement, so it's not all bad news here. Many employers want to have a person return so they can use that as evidence of employability to reduce the sting of the WC claim. Here though, the opposite is happening.

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 1 year 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.