Legal Question in Disability Law in California

Re: lay off while on disability

While you should certainly get more personal advice for such an important decision, here are some things to consider.

Employers, only are required to allow up to 12 weeks off for a serious illness, for qualified employees under the FMLA. Beyond that, leaves of absence are determined by company policy and practice and what may be considered a reasonable accommodation for a person with a disability.

Two factors you mentioned are very important. One is that the company is going through a reduction in force. This would, seemingly, make holding a job open for an indefinite period of time a difficult position to take as a form of reasonable accommodation. Employers can always lay people off for legitimate reasons. It is a false assumption people make that an employer cannot lay off employees while they are out on disability leave.

The other factor is your acknowledgment that your husband may never recover enough to return to work. If this is true and you turn down the retirement package on the table, your husband will likely, end up with nothing. No law says that an employer must keep a disabled employee's job open indefinitely.

This is a decision that must be made with all the best medical information available and discussions with the relevant employer representatives. If necessary, consult with an employment attorney, in your area, to get more specific legal advice.

Re: lay off while on disability

If he can't return to work withing the company policy leave limits, yes they could lay him off. Disability laws do not prevent lay off, only discriminatory lay off. He needs to try to negotiate a decent separation package. Feel free to contact me for legal help doing so. I have handled employment law for over 30 years.