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Can an employer terminate your employment while you are disabled if you have reached the max period under their FMLA policy?

Orangeburg, NY |

I am currently disabled and have been out of work under the company's FMLA policy. Under this, you position is held for you for a max period of 13 weeks. If you are unable to return at that point in time, your employment is terminated. You may apply for re employment in the future and if a position is open you will be considered. I always thought you could not be let go if you were disabled. Please advise.

Attorney Answers 2


  1. The EEOC has held that an employer must consider leave as a request for an accommodation and should therefore engage in the interactive process to determine if additional leave will pose an undue hardship to the company. Courts are somewhat split on this issue but an across the board denial of additional leave certainly raises Significant concerns.

    Ryan Finn
    Rfinn@hackermurphy.com
    Serving clients throughout New York State

    PLEASE READ THIS DISCLAIMER * I very much like to offer my advice and guidance to those in need. It is why I became a lawyer. However, please note that I have not been engaged to be your lawyer so my advice is general in nature. Certainly, if you would like, please feel free to email or call me to further discuss the particulars of your situation (as many times it is not a good idea to provide a lot of information about your case on a public forum). * Hacker Murphy, LLP * 518.213.0115 * Rfinn@hackermurphy.com * http://www.hackermurphy.com/Attorneys/Ryan-M-Finn.shtml * Hacker Murphy serves clients throughout New York State (including New York City and Long Island). *


  2. What's unclear from your question is whether you are now, or will be in the near term, physically or mentally capable to return to work. If the answer is "no" (either now or at some point in the near future), you can be lawfully terminated as you are not qualified for your position (since you cannot perform the job).

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