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My 12 weeks of my FMLA expires but I�m still out on

Customer Question
Second opinion] My 12 weeks...
Second opinion] My 12 weeks of my FMLA expires but I�m still out on disability my manger tell me that they can replace me if the want to since I�m noblonger protected I see that trueJA: Because laws vary from place to place, can you tell me what state this is in?Customer: New JerseyJA: Is the employment agreement "at will," union, full time or part time?Customer: Or will I still be protected under ADAJA: Anything else you want the lawyer to know before I connect you?Customer: Full time
Submitted: 3 months ago.Category: Employment Law
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Answered in 32 minutes by:
1/4/2018
Employment Lawyer: RobertJDFL, Lawyer replied 3 months ago
RobertJDFL
RobertJDFL, Lawyer
Category: Employment Law
Satisfied Customers: 14,641
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Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I am reviewing your question and will reply back shortly.

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Employment Lawyer: RobertJDFL, Lawyer replied 3 months ago

Good afternoon,

Your employer may not terminate you if you are on FMLA leave as long as you don't go over 12 weeks of FMLA leave per year. When you return from FMLA leave, your employer must employ you in your former position or one that is substantially similar. But, if you do exceed 12 weeks of FMLA, even by a day, you run the risk of being terminated for excessive absences.

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Employment Lawyer: RobertJDFL, Lawyer replied 3 months ago

Sorry, wasn't done typing -hit enter by mistake. Give me a moment.

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Employment Lawyer: RobertJDFL, Lawyer replied 3 months ago

That said, you can ask your employer for a reasonable accomodation under the Americans with Disabilities Act (ADA) if you are still disabled.

Under the ADA, disability is defined as "a physical or mental impairment that substantially limits a major life activity." Employers covered by the ADA (those with 15 or more workers) must offer to make reasonable accommodations of your disability as long as it will not cause them undue hardship (for example, if they are a small employer and the cost to put someone in your position would be too great).

Here are some things courts have considered when deciding whether leave constitutes a reasonable accommodation.

  • The nature of the job. If regular attendance is an essential function of the job (as it often is), some courts have found that an employee who needs a significant amount of time off is not qualified for the job, and therefore is neither protected by the ADA nor entitled to a reasonable accommodation.
  • How much leave the employee needs. While many courts have found that an employer is not required to provide open-ended leave, courts are more likely to see a finite period of leave as a reasonable accommodation. If an employee will be able to return to work on a date certain, a court is more likely to find that the employee is entitled to this time off.
  • How much time off the employer provides in other circumstances. If an employer grants extended leaves for other purposes, it will be hard-pressed to claim that allowing leave to an employee with a disability is an undue hardship.

Ultimately, it will also depend on how much time you believe you will need to come back to work. If it is a matter of just a few more weeks, then that is much more likely to be seen as a reasonable request. If your disability is such though that you don't know when you will get back to work, or if you will ever be able to return to work, an employer would be in a much better position to argue that this would be an undue hardship.

Please let me know if I can clarify anything or provide you additional information.

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