Legal Question in Disability Law in California

Can you be ''Laid off ''without a chance for rehire. while out under a doctor ca

For two weeks my doctor ordered me to stay in the office,not to lift over 5lbs. Instead my employer sent me on the road as usual. State to state working on heavy equiptment.(My tool box weights at least 50lbs)After two weeks my Dr. ordered no work untill test results come. Two days later I was ''laid off due to the economy. Yet in the severence package one of the terms stated by singing I was inelgible for rehire,or reinstatement. I was replaced two weeks later. I'v filed with the DFEH,and they have investigated for a year. But because of the 50 or more employees within 75 miles rule I don't qualify for FMLA leave. Today I recieved My RTS letter from the DFEH. My case now will be seen by the EEOC. I'v been found disabeled by the Social Sucurity Adm which was dated back a year (before I was fired) Do i stand a chance in a state civil court,or in Federal?


Asked on 3/11/03, 4:10 am

2 Answers from Attorneys
H.M. Torrey The Law Offices of H.M. Torrey

Re: Can you be ''Laid off ''without a chance for rehire. while out under a docto

you may have a very strong case against your former employer. email me back with more specific facts, especially in respect to the "reasons" your employer gave you for termination and then replaced your position with someone else shortly thereafter. also, let me know what your severance package consisted of and i may be able to help you legally on this matter.

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Answered on 3/18/03, 3:20 pm
Craig Silman The Law Office of Craig M. Silman, Jr.

Re: Can you be ''Laid off ''without a chance for rehire. while out under a docto

First of all you have a failure to accommodate claim by your employer not obeying the doctor's restrictions.

There is confusion as to where the ADA ends and the FMLA begins and vice versa. For example if I tell my employer I need time off because I injured myself and provided proper medical documentation, am I protected under the FMLA or ADA? I have satisfied all the requirements to request time off for the FMLA. I have also satisfied the requirements for an accommodation request of time off under the ADA and Fair Employment and Housing Act (FEHA). All three statutes, ADA, FEHA, and FMLA, do not require that you mention either when you request time off.

You should still file your lawsuit based on the FEHA in state court claiming you were denied reasonable accommodation by not getting the time off you request, you were terminated due to your disability, and that you were terminated in retaliation of making an accommodaiton request.

Find an attorney who understands ADA and FEHA law. Do not get a person who does general practice. Also, they should not charge you up front.

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Answered on 3/18/03, 5:14 pm


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