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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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I had a stress fracture in my foot a little over 3 months ago

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I had a stress fracture in my foot a little over 3 months ago in Aug.. I was off work 2 months. I was released by the doctor Oct 26th, 2011. Went back to work & worked the whole month of November thru black Friday. I still wear the boot. Black Friday after my shift ( I work at jcPenney) they told me not to come back to work until my foot is 100 percent. The fracture is almost healed, however, I hurt my toe, same foot same area. My question is - can they tell me I can't work even if the doctor says I can & can they make me use my vacation time? I work in Concord, Ca
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question.

The Americans With Disabilities Act prohibits employers from discriminating against employees on the basis of a disability. Further, an employer must provide "reasonable accommodations" for an employee with a disability. However, a disability is only qualifying under the act if it "impairs a major life function." A minor stress fracture probably would not qualify as a disability under the ADA.

Further, since an employer is under no legal obligation to provide vacation pay, it is typically free to direct employees to use that vacation time as it pleases. This means that an employer is generally not breaking any law by requiring an employee to use vacation time to recover from an ailment. I know that this sounds unfair.

An employer typically cannot, however, terminate an employee on the basis of them being on workers compensation. Thus, while an employer cannot terminate you on the basis of your injury, the employer would generally be free to send you home until it believes that you are healed and able to perform your work duties adequately.

I sincerely XXXXX XXXXX you find this information helpful. Please bear in mind that none of the above constitutes legal advice nor is any attorney-client relationship created between us.

If my answer has been helpful to you please click accept so that I can be paid for my time. If you require additional clarification, please do not hesitate to ask.
Customer: replied 5 years ago.
This was not a work injury. I was not at work when it happened. I don't know if that would affect your answer?
Expert:  Patrick, Esq. replied 5 years ago.
Thank you for the additional information. Unfortunately, the fact that you were not injured on the job does not affect the way that the law would typically operate under these circumstances.

I wish you the very best, XXXXX XXXXX don't forget to click accept if you have found my answer to be helpful.
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