Legal Question in Medical Leave in California
I was Dx breast cancer back in Nov, 2005. In 2006 I went through chemo and radiation which put me off work for 9 months with no problems with my employer, I went back to work on my same station same facility with no problem as a certified nurse assistant. I put off my reconstructive surgery for 4 years due to the fact that I was going to school for (LVN)License Vocational Nurse, I started my first surgery in June 4th 2009 which was not favorable and had to have a second surgery on Sept, 24th 2009 which was much more complicated and longer recovery (TRAM FLAP) at this point I need a third surgery which will be the last one god willing My Dr. gave me an extension to be off work till after my last surgery which will be in mid Jan 2010, It will throw me off work for about 2-3 more months, which will be almost 9 months all together from when I started my first surgery, I informed my employer and she will not give me any information regarding holding my job, I was informed they will not place me on the same station now as a LVN but I need to know how long legally I can be out off work with out them terminating me, and having to reapply and loose all my benefits? I been with the company for 15 years. What other step can I take,? Do they have the right to withheld information regarding medical extension/and holding my job?
1 Answer from Attorneys
I am sorry you are going through so much difficulty on both fronts. Unfortunately, I cannot provide you with any positive response. That is because the only laws that require employers to hold a position for an employee who must take medical leave for serious medical issues are the FMLA and CFRA, which mandates that employers of 50 or more employees, within a 75 mile radius, must allow qualified employees to return if they do so within 12 weeks. After that, there are no guarantees of job security.
It is not clear if your surgery is directly related to having had cancer (which is a protected medical condition) or some other disability, which would enable you to request a reasonable accommodation from this employer in the form of an extended leave. The fact that they did it once before, gives you some precedent to rely upon. But whether an employer must extend such a leave that long depends on many factors, not available here. If they can show that the extension would cause an undue hardship on the employer, they can justify refusing your request.
You should, at least, make a formal request for a reasonable accommodation and provide any medical documentation necessary from your health care provider. If there is a company policy on leaves of absence, become familiar with it. If you find this too overwhelming, consult with an employment law attorney in your area.
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