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Joseph
Joseph, Lawyer
Category: Legal
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Experience:  Attorney with significant and substantial experience in multiple areas of law.
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How long can my employer hold my job while on state disabi

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How long can my employer hold my job while on state disability?

Joseph :

Hi, my name is XXXXX XXXXX I'll be assisting you with your question today. Your employer can hold your job for as long as you are on state disability if he or she chooses to do so. However, an employer is not required under California law to hold your job for any duration while you are on state disability.

Customer:

okay, so if they choose not to hold my job than they get to terminate me?

Joseph :

Yes, they can terminate you if they choose not to hold your job while you are on state disability.

Customer:

then what can i do after that? remain on disability or get unemployment?

Joseph :

You can stay on disability at that point. You can't collect disability and unemployment insurance at the same time, but you could file for unemployment insurance while you are receiving disability payments.

Customer:

okay, but i thought that under FMLA the employer is required to hold your job for up to 12 weeks?

Joseph :

Yes, FMLA does require your employer to hold your job for up to 12 weeks if your employer is covered under FMLA (has 50 or more employees) and your condition meets the requirements for leave under FMLA.

Joseph :

This is from the U.S. Department of Labor Website. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:



  • Twelve workweeks of leave in a 12-month period for:

    • the birth of a child and to care for the newborn child within one year of birth;

    • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

    • to care for the employee’s spouse, child, or parent who has a serious health condition;

    • a serious health condition that makes the employee unable to perform the essential functions of his or her job;

    • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or





  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).

Customer:

Okay, but is that discrimination that I've been terminated from my job based upon a disability?

Joseph :

No, unfortunately, it doesn't qualify as discrimination if the disability prevents you from performing the essential functions of the job. (Unless you are able to perform the essential functions of the job with a 'reasonable accomodation.')

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