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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 116789
Experience:  20+ Years of Employment Law Experience
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I went on an ADA covered company approved non-FMLA leave for

Customer Question

I went on an ADA covered company approved non-FMLA leave for 34 days. When I came back, my job duties 100% shifted and my position was filled by someone else. Is this discriminatory?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 11 months ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

What do you mean "ADA covered company approved non-FMLA leave?"

Customer: replied 11 months ago.
I work for a healthcare system. Employees must have 1 year before they can go on FMLA. But my company has a non-FMLA medical leave that is still covered under ADA. I have email documentation from HR telling me not to be afraid to lose my job because I am covered under ADA. I have email documentation that I had no idea I was being replaced, either. She reassigned my duties without telling me. It's all documented. Is this discrimination?
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your clarification.
Unfortunately, it is the FMLA that says that the employer cannot fire you or change your job when you are out on leave under FMLA. Under ADA, they cannot fire you or discriminate against you based on your disability, but they could give you a new job or move you if they can demonstrate a legitimate business need. This is the difference between you being protected under FMLA and not being under FMLA and only under ADA. ADA does not provide the extent of the protections under FMLA regarding your employment assignments (it is why there are two different laws).
Customer: replied 11 months ago.
But I read this from The U.S. Equal Employment Opportunity Commission:
The ADA makes it unlawful to discriminate in all employmentpractices such as:
job assignments
lay off
all other employment related activities.
It is also unlawful for an employer to retaliate against you for asserting your rights under the ADA. The Act also protects you if you are a victim of discrimination because of your family, business, social or other relationship or association with an individual with a disability.
Customer: replied 11 months ago.
34;Job Assignments"
Customer: replied 11 months ago.
what if no legitimate business need was described to me? I have no documentation from them.
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your reply.
Right, but that is why I said above, "legitimate business reason" they could not reassign you just in retaliation for taking the leave protected under ADA. They do not have to explain anything to you, but if you believe that the only reason for your reassignment was using ADA leave, then you have to file a complaint with the EEOC and they would have to investigate and the employer would have to prove to the EEOC that you were not reassigned only because of your disability, again the level of protection under ADA is not the same as FMLA which prohibits reassignment while under FMLA or upon return from FMLA unless you are move to a substantially similar or better position at or above the original rate of pay.
Customer: replied 11 months ago.
I bet providing a "legitimate business reason" wouldn't be tough to do. They could fabricate something, despite my stellar performance. I'm a director of finance information services, by the way. And was a very successful one.
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your reply.
Also if they show your new assignment is similar and at the same pay or more, they could also defeat your complaint.
Customer: replied 11 months ago.
My new assignment is a demotion without a pay demotion. I had 20 employees, now I have 2. I had about 40 projects, now I have 2.
Customer: replied 11 months ago.
By the way, thank you. :)
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your reply.
You can file your complaint with the EEOC, they have to investigate by law and issue a right to sue letter, which is the only way you will get any evidence from the employer regarding you being able to prove the move was only because of your disability, but if you did not lose money, the case is going to be very difficult.