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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 117401
Experience:  20+ Years of Employment Law Experience
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I have been put of work since November 2nd 2012 for a knee

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I have been put of work since November 2nd 2012 for a knee injury, I finally had my surgery on march th 2013 due to my dr being out of town a majority of the time I was injured, now myknee swelling went down and my physical therapist noticed a funny bump in my surgical site, so I will be having a corrective surgery on june 12 ( tomaro) to fix this painful bump in my knee. My job sent me a letter saying I have to return to work by june 30th. They have been upset with me for a long time since I haven't been able to return to work at all because of there policy, the policy is employees must return to work with no restrictions and that they will not make accommodations to my injury for my return. I velieve they are trying to terminate me. I have been woth Marriott for 6 years in august and I am a really hard worker. My qork consists of me pushing and pulling hot food boxes weighing 400 lbs empty without food and plates. My injury is to my knee this is my 3rd surgery since I worked there. My first injury happened at a work party that none of my bosses knew about ( I was young and scared they would fire me so I kept to myself and made up a story) I'm wondering if they are legally allowed to fire me, and if so what can I do to prevent this? People have told me I can sue them if they fire me, I love my job so I'd rather not.. but if I have to I guess that's what I have to do.. please help!
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Under the law workers compensation claims run concurrent with time off from work under the Family and Medical Leave Act. Under the FMLA, the employee is entitled to job protection for up to only 12 weeks and after that time the employer is free to terminate the employee. People who told you that you could sue them are not correct I am afraid. You would be entitled to continued workers compensation payments and when you are cured and your doctor releases you, if the employer terminates you then you are entitled to receive unemployment because the termination was without good cause through no fault of your own.

The only way you could sue them is if you have a written contract for employment and that contract specifies you are entitled to additional job protection beyond the FMLA or that they cannot fire you while you are out on workers compensation. Absent some contract to that effect, I am afraid that you are an at will employee and outside of the FMLA protection and as such your only right would be entitled to workers compensation benefits until cured and then unemployment benefits.

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Customer: replied 4 years ago.

Would have been mote helpful if you didn't talk about workers compensation,considering I am not recieving workers comp.. I am gettinf short term disability which I pay for weekly

THank you for your clarification, since you did not make it clear in your statement in your question whether or not you were or were not on workers compensation and it seemed as though you were. All you had to do was clarify that since your statement was not clear and did not have to claim bad service because your statement did not make it clear.

However, since you are not on workers compensation, then only FMLA applies and unless you have some employment contract to the contrary, after the 12 weeks the employer owes no duty legally to keep you employed I am afraid. If you are terminated for not returning to work, then again, your only claim when you are ready and able to go back to work would be to claim unemployment, but you cannot sue the employer for letting you go for not being able right now to return to work.

I am afraid the only claim you have against the employer, besides unemployment, would be if you do have a written employment agreement or union contract that has different terms and provisions. If there is such a contract, then the employer has to follow the terms of that contract and if they fail to do so and terminate you then you have grounds to sue for breach of contract, but aside from a contract I am afraid as an at will employee you have no other legal protection outside of the FMLA.
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