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Can an employer fire me if I am injured and out of the office for six weeks?

San Diego, CA |

After being injured outside of the job, I was required to take six weeks off of work for recovery. After reporting that I would need six weeks off of work for recovery, I was fired. Because I have not worked at the company for long enough, I am not eligible for leave. I was wondering if the company is required to hire a temporary employee to do my job until I am able to come back, because the company currently uses temporary employees. Is this a reasonable accommodation? What are my rights?

Attorney Answers 4


  1. More information is required to answer your question. Would you have required an accommodation to return to work? Did you explain that when you reported your injury and need for a medical leave? Please keep in mind that while you may not have "worked at the company long enough" to qualify for FMLA or CFRA, you may still be covered by the Fair Employment and Housing Act and could potentially have a claim for disability discrimination, failure to accommodate and/or failure to interact.

    This area of law is complex and I would recommend that you seek a consultation with an employment law attorney in your area to discuss the facts of your situation in detail. You might want to check cela.org for a list of attorneys that practice this area of law.

    Christine M. Adams, Esq.
    ADAMS EMPLOYMENT LAW
    510 STATE STREET, SUITE 265
    SANTA BARBARA, CALIFORNIA 93101
    TEL: (805) 845-9630
    FAX: (805) 845-9634
    http://www.adamsemploymentlaw.com

    Legal disclaimer: Avvo is a free service that enables you to obtain general information, not legal advice. My responses to questions on Avvo are not intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established by the execution of a written agreement for legal services. You can reach me at (805) 845-9630 or learn more about our firm at http://www.adamsemploymentlaw.com


  2. I agree with what Christine says above, and I would encourage you to pull together whatever documentation was given to the employer about your injury, your need for recovery leave, and to create an outline of every communication you had with the employer about these circumstances. This is something you'll want to show to the attorney when you meet.

    THIS IS A GENERAL ANSWER TO A GENERAL QUESTION AND SHOULD NOT BE RELIED UPON AS A FULL LEGAL ANALYSIS OF ANY FACTUAL MATTER. An attorney-client relationship is not established or offered solely as a result of this answer.


  3. The lawyers who have thus far responded are on the mark. Under the Fair Employment and Housing Act (FEHA) a leave of absence may be considered a reasonable accommodation and your 6 weeks request for leave may qualify as such, in other words, your employer may have been required to provide a leave of absence as an accommodation for a disability. Not knowing what your injury is, your position is and other detail (, salary, key person, availability of temp workers or others to cover etc...) it is difficult to provide a solution. However, the company does have a duty to engage in an "interactive process." They have a duty to inquire as to waht your injury is, when you could return, whether you could work from home, and how they may facilitate a return to work. You likewise have a duty to inform them of your disability and what it will take to assist you in returning. These cases are all about details so things like documents you produced to the company, emails etc...are important. Doctor's notes requests to supervisors. You are on the right track and should consult with a local San Diego employment attorney. I recommend going to www.cela.org.

    Best,

    Kael

    Kael M. Briski
    Briski Law Firm
    4 North Second St. Ste. 550
    San Jose, CA 95113
    (ph) (408) 297-9100
    (fax) (408) 297-4304
    Email: kael@briskilaw.com

    You should know that this answer is for informational purposes only and does not constitute advice or establish an attorney client relationship. You should have an office conference with a local attorney and provide as much detail relative to your interactions with the company on this issue as possible. I recommend looking at www.cela.org.


  4. The attorney answers so far have been precisely correct. When were you were officially fired? There is a time limit for bringing claims. You will want to consult with an attorney right away. There is a one year time limit for claims under the Fair Employment & Housing Act and a two year time limit (statute of limitations) for wrongful term claims. So if you just got fired, you're OK in that regard, but don't wait until the last moment to act.

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