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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12801
Experience:  Significant experience in all areas of employment law.
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If I am on disability do the same layoff rules apply?(my unit

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If I am on disability do the same layoff rules apply?(my unit in the hospital has been closed)
Hello and thank you for entrusting me to assist you, I will do everything I can to answer your question.

When you say do the same rules apply, do you mean to ask whether the hospital can include you in a mass layoff even though you are out on leave? Do you know if other employees are being offered positions in other departments?

I very much look forward to helping you on this matter.
Customer: replied 4 years ago.

Yes they have but I told them I wanted to wait till after I had my back operation before I applied for another position depending how the operation went.
Thank you very much for your reply.

Assuming that you are on FMLA leave or your condition qualifies as a disability under the Americans With Disabilities Act, your employer would be breaking the law by treating you any different that other similarly situated employees. However, this does not mean that an employer cannot lay you off while you are away from work--it simpyl means that if they lay you off, it needs to be out of a legitimate business necessity and they need to be able to show that it would have happened even if you had not taken leave.

If you are on FMLA protected leave, the employer actually has the burden of proving you would have been laid off anyway. McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792 However, if your entire unit has been closed down, it will not be hard for your employer to prove that this was the case.

With regard to being permitted to apply for another position, you must be afforded the same rights as other employees. Generally speaking, this does not mean that your employer must delay filling positions and wait until you have your surgery before you apply and they consider everyone all at once. Since other employees must apply by a certain deadline, your employer would generally be free to hold you to that same deadline; however, they cannot consider the fact you are still away from work as a factor in rejecting your application.

The only exception would be if your condition qualified as a disability under the ADA and your disability prevented you from applying at the same time as everyone else. That being the case, your employer would be required to "reasonably accommodate" your disability, which may include permitting you to apply at a later point in time than other employees, provided that delaying the deadline would not cause the hospital to incur undue hardship.

So to summarize here, employers are required to treat employees on FMLA leave or employees with missing work due to an ADA disability the same as healthy, otherwise similarly situated employees. Unfortunately, though, this does not mean that an employee out on disability would be exempt from a layoff that would have happened anyway, and since the rest of your unit is being laid off, it seems clear that such employment action was inevitable regardless of whether you were missing work or not.

Generally speaking, an employer does not need to extend the application deadline for an employee out on disability, though they may not consider the employee's absence as a factor in choosing to accept or reject their application. If an employee has an ADA disability which prevents them from applying with everyone else, an employer may be required to extend the application deadline as a reasonable accommodation, provided doing so does not impose an undue hardship on the employer's operations.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
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