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I am on medical LOA since July. I got a paper by Fed ex and…

Customer Question
I am on medical...

I am on medical LOA since July. I got a paper by Fed ex and they said that they had replaced my position back in October. They never once told me about a deadline and this letter was the only contact stating this. I have seen several other people take a leave for eight months (give or take)and they still had their position upon returning.

Lawyer's Assistant: Have you documented this or discussed it with HR?

HR sent the letter

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Full time store manager

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

My leave is going to be longer because need repair surgery for my shoulder, rotator cuff

Submitted: 7 months ago.Category: Employment Law
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12/15/2017
Employment Lawyer: Patrick, Esq., Lawyer replied 7 months ago
Patrick, Esq.
Category: Employment Law
Satisfied Customers: 14,395
Experience: Significant experience in all areas of employment law.
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Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

Do you have a definitive return date? Also, what specifically is your question? Are you asking what your legal options are? I very much look forward to helping you on this matter.

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Customer reply replied 7 months ago
No return date. My question Is, can they replace my Store Manager position without my knowledge
Customer reply replied 7 months ago
I have been with this company for 11 years
Employment Lawyer: Patrick, Esq., Lawyer replied 7 months ago

Thank you.

For a leave of absence more than 12 weeks, the only law that potentially requires your employer to hold your position is the Americans With Disabilities Act. Under the ADA, your employer must hold your position for so long as doing so doesn't cause them to suffer "undue hardship," defined as significant difficulty or expense.

If your employer has held other employees' positions for eight months or longer, that certainly suggests that they may be able to do the same in your case. But keep in mind every position is different, and the needs of a business can change over time. The biggest thing that hurts you right now is the fact that you have no return date. It's hard to say that it would be reasonable for your employer to hold your position when it cannot be articulated how long they must actually do so. Most juries would not find it to be reasonable for an employer to wait, in the dark, not knowing when or even if you'll come back, for some undefined period of time beyond six months. So, if it's at all possible, I would provide at least an estimated return date to your employer in writing. That way, you are working with something concrete. Otherwise, it's not really possible to argue that it's "reasonable" because we don't even know what duration of leave we're talking about.

In the same letter in which you provide your estimate return date you should explain in as much detail as possible why holding your position for that long would be a reasonable accommodation under the ADA. As mentioned above, the fact that they have held other employees' positions for eight months or longer helps. Any other facts you can argue about how your employer can assign your work to other employees, transfer other employees, or otherwise accommodate your return should also be mentioned.

Ultimately, if your employer still refuses to return you to work, your recourse is to file a complaint for violation of the ADA with the EEOC. You can do so here. 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.

* Disclaimer *

Just Answer is a venue for informational and educational purposes only. No attorney-client relationship is formed by these communications.

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Employment Lawyer: Patrick, Esq., Lawyer replied 7 months ago

Was there anything else I can do for you here?

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Employment Lawyer: Patrick, Esq., Lawyer replied 7 months ago

Can you please let me know if you are receiving my messages to you? I am online, awaiting your response....

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