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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12631
Experience:  Significant experience in all areas of employment law.
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Hello , Heres my situation Ive been employed fulltime for

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Hello , Here's my situation I've been employed fulltime for a non-profit company for 2.5yrs I was injured on the job October of 2011,and had surgery in April 2012, so I was on worker-comp disability for 5 months. I'm released for full duty tomorrow but they filled my position inwitch is 1hr total from my house by Bus. what they're offering is for me to travel from south east SanDiego,ca. to Escondido,Ca. The travel time for this is 3.5hrs each way via 4 Bus's in total 14 to 15hr Day's. What Rights do I have. Can they fire me if I refuse!!!
Hello and thank you for entrusting me to answer your question. I am so sorry to hear about your injury and the fact that your employer is now trying to transfer you somewhere further away.

Unfortunately, an employee's rights in these particular circumstances are limited. Pursuant to the Family Medical Leave Act, an employer who employs more than 50 employees is obligated to hold the position of any qualifying employee suffering from a "serious health condition" for up to 12 weeks. After 12 weeks of absence, however, there is no law state or federal that requires an employer to return an employee to their previous position.

Since employment in the state of California is "at will" absent an agreement to the contrary, this means that an employer retains full discretion to trasnfer employees or terminate employees who are absent from work for more than 12 weeks, regardless of the reason for their absence.

The only relevant exception to this rule is where the condition for which work is missed qualifies as a disability pursuant to the Americans With Disabilities Act. The determination of what constitutes a qualifying disability is a complex issue, but in general, in order to have a “disability” you must have a mental or physical condition that “significantly impairs a major life activity.”

According to the most recent Supreme Court decision, this analysis requires the courts to review whether the person is able to perform the tasks of daily living (washing, brushing teeth, fixing meals, housecleaning, etc.), and decide if the person is significantly more impaired in those tasks than other persons in the population who are not “disabled.” It also requires the courts to consider the person’s abilities with corrective devices, such as prostheses and medication, but may consider side effects that result from medication. For more information on what constitutes a qualifying disability, visit this link:

If a person is “disabled” in accordance with the ADA's definition, then they may be entitled to an extension of the 12 week periof of protected FMLA leave described above. Again, however, this assumes that FMLA leave is available and that the condition for which leave is taken qualifies as a "disability." In all other cases, an employee in your circumstance would have no legal right to reinstatment in your former position.

If you are unable to commute to your new work location, an individual in your circumstance may be eligible to collect unemployment benefits, even if you quit your job if you can demonstrate that your new commute would have been unreasonable. for more information on the circumstance in which an employee can quit their job and still remain eligible for unemployment due to excess travel times, see here:

I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver what is at least partially bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
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