Legal Question in Medical Leave in California

Disability v. FMLA

I am on disability due to a partial knee surgery. My doctor gave me a note for my employer telling them that I will be on disability from 02/01/06 to 06/01/06. I told my boss I was going on disability for the surgery. I get a letter dated 02/13/06 stating that my employer is designating my leave as FMLA and not disability and that I am to return to work within 12 weeks of this date. They say if I do not return by the due date I will be responsible to pay my medical for the month of May and that the firm cannot gauarantee my position and/or job. I never told them I wanted FMLA. Do we have to go on FMLA automatically even if we don't choose it? Why are they putting me on FMLA? My doctor told me they cannot fire me while I am on disability. My doctor also told me that I most likely will not be able to return in May but maybe I could return in 06/06 or 07/06, not to mention I am supposed to have another surgery at the end of April or the beginning of May, which will put me on disability even longer.

If they do terminate me, will I still be able to collect disability until the doctors release me? Also, when my disability runs out will I be able to convert to unemployment if I need too? Can they do this to me? Do I have any options?


Asked on 3/15/06, 2:54 am

1 Answer from Attorneys
Michael Kirschbaum Law Offices of Michael R. Kirschbaum

Re: Disability v. FMLA

This is why doctors should stick to practicing medicine and not law. The law that provides job protection is the FMLA and its California equivalent, for up to 12 weeks. The fact that you are out on disability does not require that your employer hold your job open for you for 5 months or more. If you have a qualified disability, an employer is only required to reasonably accommodate that disability, provided it causes no undue hardship to the employer. Sometimes, this can mean an extended leave of absence, but each case must be examined based on its specific facts. No lawyer, through this forum, can tell you if they believe your employer must hold your job open. You will need to meet with an attorney who specializes in this area and provide much more information to get an informed opinion and explore your options.

This does not mean you are not eligible for disability insurance, assuming you meet the criteria. Most likely, you will be able to get short term disability, either through the company's insurance provider, the state or both. Check with your Human Resource Rep for more information on this. Also check with the Employment Development Department to find out which benefits you are eligible for.

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Answered on 3/16/06, 8:01 pm


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