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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I live in michigan and i injured my knee at home on

Customer Question

I live in michigan and i injured my knee at home on 10-25-16. I went to urgent care on 10-26-16. The doctor told me i had to see an orthopedic surgeon. I received a dr note stating i couldnt return to work untill 11-5-16. On 10-27-16 i made an appointment with the orthopedic dr but couldnt get in untill 11-9-16. The orthopedic dr told me i had to make and appointment for an MRI. He wrote me another note stating I would be out of work for an un determined amount of time pending the MRI results. On 11-10-16 i scheduled my appointment for the mri and the earliest I could get in was 11-27-16. I made a follow-up appointment with the orthopedic surgeon on 11-30-16.
Later on in the day i received a phone call from my employer's hr department. They asked when my appointments were. I told them. After they went on to say that because i havent been there for 6 months and i didnt qualify for any benfits that they had to terminate my job because i would be missing 30 days in a row of work. They couldn't hold on to my job but when i got better i was rehireable. I believe the term they used was " administrative termination." I looked today and my job was posted. Theres no garentee that ill have my job when im able to return.
The whole situation doesnt seem ethical to me and i would like to know what my rights are.
Submitted: 10 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 10 months ago.

Hello and welcome. My name is ***** ***** it will be my pleasure to assist you. Please just give me a moment to review your question....

Expert:  Patrick, Esq. replied 10 months ago.

The main job protection for injured employees is the Family Medical Leave Act, which guarantees eligible employees up to 12 months of protected job leave for "serious health conditions." However, in order to be eligible for the FMLA, an employee must have worked for their employer for at least one year. Having worked for your employer for less than one year, the FMLA unfortunately would not apply. The only remaining protection is that afforded through the Americans With Disabilities Act, which requires employers to "reasonably accommodate" a disabled employee's need to miss work. The problem with arguing that the ADA applies is twofold. First, injuries such as what you describe often do not rise to the level of a "disability," as the condition is only temporary. Second, even if your condition does qualify as a "disability" the ADA only requires employers to allow time off to the extent that it is "reasonable" for them to do so and does not result in "undue hardship" on the company. This is unlike the FMLA which guarantees 12 full weeks, regardless of hardship to the company.

Nonetheless, the ADA is the only avenue for potential legal recourse here. Typically, the best course of action would therefore be to inform your employer in writing that the ADA requires them to hold your position as a "reasonable accommodate" for your disability. This alone may cause them to reconsider their position out of fear of being sued. Then, if they still refuse to bring you back on, you would need to file a complaint with the EEOC, which is the federal agency that enforces the ADA. The EEOC will investigate and attempt to mediate a resolution with your employer. That not forthcoming, they will either file a lawsuit on your behalf or issue you a "right to sue" letter, which will enable you to sue in civil court with the assistance of an attorney.

I hope that you find this information helpful. 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 moving forward.

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