Legal Question in Employment Law in New York

No one can "make" you work. However, your employer can find someone else if you're not available for work. Of course, if your absence results from an on the job injury, or you qualify for leave under the Family and Medical Leave Act or a state statute, you do have certain protections against job loss. You should consult an experienced employment law attorney to discuss the specific facts of your situation.

New York is an "at will" state, meaning your employer can fire you for any reason except an illegal reason (e.g. because you are a member of a protected class -- race, ethnicity, etc.). You can also quit the job at any time.

The Family Medical Leave Act ("FMLA") requires that most employers (small employers -- fewer than 50 employees -- are exempt) provide up to 12 weeks of unpaid leave in a 12 month period if illness renders them unable to work, or if they need to care for an ill family member. You need to apply for the FMLA leave, meaning you must advise your employer you need the leave, and fill out the proper forms, including a doctor's statement. After the 12 weeks are up, the employer has no obligation to hold your job for you unless the employer has a formal policy that provides a greater benefit than the FMLA requires. New York also has mandatory short-term disability coverage of up to 26 weeks of benefits, up to $170/week, but the employer only has to hold the job for the 12 weeks. If you were injured "on the job," then you may also have a workers' compensation claim.

Finally, please be aware that many employers provide long-term disability ("LTD") coverage. LTD coverage for private employers over a certain size is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). Such coverage often provides a benefit equal to a percentage of pre-disability income (typically 60%), less disability benefits from other sources (e.g., workers' compensation, Social Security disability, etc.) To find out if you have LTD coverage from your employer, you should request your "summary plan description" from the employer. Make this request in writing because the employer only has 30 days to respond and could face penalties of up to $110/day if they are late.

If you have any of the above disability benefits, you should consult with an attorney as soon as possible, and preferably before you apply.