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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18790
Experience:  Employment/Labor Law Litigation
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I have been out on medical leave for over a year already.

Customer Question

I have been out on medical leave for over a year already. The company was sold without my knowledge and I was laid off on 7/7; however, I wasn't informed until I called the company on 7/11. Now they want me to sign a Separation Agreement but I won't unless the terms improve. If I don't sign, do I have the legal ground to sue?
Submitted: 2 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 2 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.

On these facts, no you wouldn't have grounds to sue. Under Federal law, you are only entitled to 12 weeks of protected medical leave in a year. Any leave beyond that is not legally mandatory for an employer to grant and they can terminate employment at any time once that 12 weeks has lapsed.

If you have been out on medical leave for over a year already, your protected medical leave time frame has passed multiple times already and the employer could legally terminate your employment without fear of a successful lawsuit against them.

This is likely why the terms of the offered separation agreement aren't to your liking (suggesting that it isn't very generous). Generous offers are only extended when an employer actually is concerned about a potential lawsuit.

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. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

Customer: replied 2 months ago.
I already used my FMLA for my first surgery and recovery in January 2016. I had a 2nd surgery in June 2016 and I have been out since. Also, doesn't the fact that no one notified me that I was laid off matter at all?
Expert:  Allen M., Esq. replied 2 months ago.

If you had already used all of your FMLA, then legally you could be terminated at any time. Unfortunately, when the FMLA was passed, it was made in a limited fashion so that employers only had to protect a short and specific amount of medical leave each year (not for each medical issue).

As for not telling you that you were laid off, that is unprofessional and fairly uncharacteristic for an employer but not it does not create a cause of action that would be financially worth pursuing (at most, it could be considered worth a week's salary).

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