Legal Question in Employment Law in New York

Was out of work on FMLA from February 8th until April 26th. Then went back to work and now have to have surgury on July 8th. Couple of questions can they count time that I have used with sick time against my FMLA? Even if they can by my calcualtions I still have 56 hours but they tell me that I am out of time. They told me they were going to post my position but today told me they were not but I could resign and still get my unemployment. Do I have a case against them? Can they post my position and hire someone else? What shoud I do? I live in New York State. Thank you for your time.


Asked on 6/07/10, 3:56 pm

1 Answer from Attorneys
John W. DeHaan DeHaanBusse LLP

Generally, the FMLA requires covered employers to provide 12 weeks of unpaid leave in a 12 month period. Your employer can make you exhaust your paid sick time as part of the FMLA leave. That is, your sick leave would be substituted for FMLA leave (running concurrently). Once your FMLA leave is exhausted, your employer is not required to hold your job any longer. The only reasons your employer would be required to hold your job beyond the 12 week period would be if you had an employment contract (or collective bargaining agreement) that required it to hold the job longer, or if the employer has a formal policy that specifies a longer period of time.

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Answered on 6/08/10, 9:33 am


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