Legal Question in Medical Leave in California

employment after 12 weeks of medical leave is up

I have been on state disability and the 12th week is coming up soon. I still have the same problem that I did when I went on SDI. My employer says that if I am not back by the 12th week they see it as a voluntary quit. Also they have included a paragraph in the papers I had to sign that if I am not back by the 12th week that they can make me pay the insurance premium for the 12 weeks I was unable to work. If I am unable to return to work due to medical condition would I have to pay the insurance premium? I have no control over my medical problem and the doctors are trying to help me so I can go back to work. I really do not want to go back to work with my illness not cured. It would put me right back into the same situation as I was before I went out on medical leave. If I am not able to return to work and they do label me as a vouluntary quit and later I am able to return to work but my job is not available anymore since I was not back in the 12 week leave, would I be able to collect unemployment until I found another job? I appreciate any help you can give me. I have worked 19 years with this company and I thought I would be retiring from this company but sounds like they have other plans.


Asked on 8/13/02, 11:47 pm

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

Re: employment after 12 weeks of medical leave is up

First, the bad news. The employer does not have to hold your job open for you after expiration of the 12 weeks. If you know of other situations where this company has made exceptions and permitted longer periods of disability leave, you may have grounds for disability discrimination, but the facts must be looked at carefully before making such a claim. 12 weeks is as much as the company is legally required to give under the FMLA and CRFA.

Now the good news. If the reason you cannot return to work is because you are still disabled from the same disability that caused you to take the leave in the first place, you do not have to repay the company the insurance premiums paid for you while you were out. Don't let them bully you about this, they cannot hold this over you as some sort of threat.

Also, you probably will be eligible for EDD benefits because you did not lose your job through any fault of your own. I don't care what the company chooses to call it, it is not a voluntary quit, they fired you or laid you off for excessive absence. If they attempt to fight you on this, you have the right to a hearing at the EDD. You also have the right to counsel at the hearing. You'll be provided with adequate notice if this comes up.

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Answered on 8/15/02, 12:45 pm


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