Legal Question in Employment Law in California
Termination While on Disability
On 4/28/06 my husband called his employer regarding his disability. He was due to return to work on 5/1/06. He said he was not ready and that his Dr. was keeping out another month (as of 4/28/06 his FMLA was exhausted). His manager told him that it was no problem and that if it was another month, that was fine. Today, she called and terminated his employment. When he reminded her of the conversation on Friday she said that she didn't know about the disability rules and that their corporate office told her to fire him. If he is under the care of a physician, doesn;t his employer have to keep a job (not necesarily his job) open? Can he be terminated while on disability? What protection does he have outside of FMLA? Should he engage an attorney? He is extremely upset because he acted on their verbal conversation that it would be okay.
2 Answers from Attorneys
Re: Termination While on Disability
In addition to the response given above, If the disability was caused or aggravated by work or in other words was work-related then you may file a petition with WCAB under labor code 132 (a). There also may be a ADA violation for failure of providing an accomodations for disabled persond under ADA regulations. You may contact me at 213.388.7070 to discuss your case further.
Re: Termination While on Disability
CONFIDENTIAL COMMUNICATION
This is a very complicated area of law that can trip up many employers. Your question cannot be answered without knowing (at least) answers to the following: (1) what are the employer's written policies regarding medical leave? (2) Do those written policies define a "12 month period" for purposes of the FMLA -- if they do not define the period then the employee may be entitled to more than 12 weeks of leave; (3) Did the employer make a "retroactive" designation of FMLA leave -- that would be illegal; (4) Does your husband have any sick leave left?
The answer to your last question (rights outside FMLA) is maybe. The situation could also be governed by disability discrmination laws. Employers are required to make reasonable accommodations to employees who have a disability (defined as a condition which limits a major life activity . . . )One type of accommodation is a short period of medical leave; other types of accommodation are job modification; reduced workweeks, etc. Beyond that, if the employer's policies provide for sick leave, or other types of leave, your husband may have contractual rights to receiving those leaves, and could sue on that basis. You should consult with a lawyer familiar with these types of issues to answer your question. Feel free to email below.
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