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Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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I live and work in California and my question is about job

This answer was rated:

I live and work in California and my question is about job protection.

I was sick because of low back pain and pain down my legs from 1/3/2013 to 2/3/2013. The specialist I have seen in January did recommend spine surgery and a spine surgery was scheduled for May.

Because this injury is a work related injury from 2007 but the specialist I have seen in January is not in the MPN, Workers Comp did ask me to cancel this surgery and to see a specialist in their network, which I did.

I found a specialist in the MPN and I got an appointment with this doctor in April. He did also recommend spine surgery. I had the spine surgery on 7/16.

The doctor wrote me on disability sick leave starting the day of surgery 7/16/13 – 10/16/13.

Worker’s compensation does currently pay Temporary Disability since the surgery.

My next appointment with the specialist is in two weeks where the MD is going to evaluate the results of the surgery and the status of my recovery again.

The Leave Management Insurance of my company wrote:

CA Family Leave
From 1/3/2013 – 2/3/2013 Approved
From 7/16/2013 – 9/5/2013 Approved
From 9/6/2013 – 10/15/2013 Exhausted

From 1/3/2013 – 2/3/2013 Approved
From 7/16/2013 – 9/5/2013 Approved
From 9/6/2013 – 10/15/2013 Exhausted

Company Policy is:
"Eligible employees may request up to a maximum of 12 weeks of FMLA leave within any "rolling 12 month period." In other words, the period starts when the employee begins his or her medical leave so that not more than twelve weeks of leave can be taken in the "rolling" 12 month period." ....etc...

"If the employee fails to return to work on the agreed upon return date, the company will assume that the employee has resigned." ...etc...

My question:
My job protection ends on 9/5/13 but I still in recover from this surgery.

Is there anything that can be done to extend my FMLA leave up to the time the doctor will release me to work (certification of my fitness to return to work)?

According to the doctor, I will start work again with reduced-hours work for a while once I'm ready for it.

In other words, after this surgery, is there any way to protect my job until I have been released back to work by the specialist?

Thank you very much!
Hello and welcome to JustAnswer

I'm sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service today.

Unfortunately, you are only entitled to 12 weeks of FMLA leave, so I'm afraid there's nothing that you can do to extend your FMLA leave beyond 12 weeks.

However, that does not mean that your employer can immediately terminate you or assume that you've resigned if you don't return to work.

You should inform them that you need the additional time to recover from your surgery and that you will be ready to return shortly thereafter, and that you are requesting a reasonable accommodation for your disability of additional time off after your surgery for you to recover and to be able to return to work.

As long as this wouldn't pose an undue burden on your employer, your employer would be obligated to hold your position open until you are able to return to work (depending on the employer this can be a few months to over a year, but that's normally only with large employers).

If they deny you that request, you can and should file a complaint with the Department of Fair Employment and Housing for discrimination in violation of the Fair Employment and Housing Act for failure to provide you with a reasonable accommodation so you can perform the essential functions of the job.

I hope the above information is helpful.

Please let me know if you have any follow up or clarifying questions as I want to ensure that you are completely satisfied with my service.

If not, please remember to rate my answer positively so I get paid for my work.

Thanks and best of luck!
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank you so much for your answer, Joseph! It's much appreciated!

Hello Claudia,

Thank you for your positive rating of my service. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should you have future legal questions.

Please request me directly by placing “to Joseph” at the beginning of your question and/or requesting me directly in California Employment Law.

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and best of luck,

Customer: replied 3 years ago.

Hello Joseph,

I will do so!


Thank you very much for your quick help and all of the information that you have given me!


Will keep in touch,



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