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Can I claim unemployment after being fired while on short-term disability? I exhausted all of My 12 weeks (fmla)...

Compton, CA |

Currently on short-term disability, and protected under the FMLA act, however I am getting real close to reaching my 12 weeks of FMLA. The orthopedic treating me has extended my short-term disability due to complications and possible surgery that has me out till March of 2014. By then I don't see my employer holding my job, I all ready see the situation unfolding as my employer called me to turn in my tools. I would love to get back to work, unfortunately I cant due to my knee issues and the constant heavy lifting at work. The doctor treating me had originally requested "light duty" my employer responded with "we don't offer light duty since its not a work related incident" she then had no choice to put me on short-term disability...any help will be highly appreciated

***And I am of course asking about unemployment benefits after I have been released from short-term disability not simultaneously... ***Thank you all for your time and answers, I work for a real shaddy employer, im not the first nor the last to go though this ordeal...they have done this before with my coworker (wrongful termination and discrimination) I have a consultation with his attorney thats currently working a case againts my employer.

Attorney Answers 5

Posted

Although I know this answer is not to your posted question, I would like for you to consider that your employer might have already violated your rights under the Fair Employment and Housing Act, and if it terminates you when your FMLA ends, it may again do so.

It is an absolutely ridiculous position to say "we don't offer light duty since its not a work related incident" because the duty to accommodate an employee's restrictions is completely unrelated to whether or not your disability arose on or off the job. If there were ways to provide you with light duty work, i.e., accommodate your restrictions, it is duty bound to do so. A failure to reasonably accommodate, or even consider accommodation, because you were injured away from the job is a violation of law.

Then, FMLA is only one leave statute that will apply to you. Many employers think that is it. They are wrong. Once you end your FMLA leave, the Fair Employment and Housing Act protections still exist, and they provide that if a finite period of unpaid leave would allow you to return to your job, and extending that leave would not constitute an undue hardship on the employer, you should be provided that additional unpaid leave. If you have provided your employer with a doctor's note that indicates you could return in March, unless the employer can establish that holding your position open until March would constitute an undue hardship (not an easy standard) then it must reasonably accommodate you with that additional leave.

This is a highly factual area of law and will require an attorney to know much more about your situation to assist you. Therefore, it would be prudent for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Posted

Make a claim and see what happens you have nothing to lose. If they so you don't qualify then at least you tried.

Best of luck.

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Posted

File a claim for unemployment. Consult with an employment attorney about your employer's refusal to accommodate you in connection with the injury.

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Posted

You may be eligible for unemployment benefits, doesn't hurt to apply. Additionally, you may have a discrimination and wrongful termination claim if you are fired after your short-term disability is up. A full consultation would be necessary to determine this.

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To enforce your rights, you have probably figured out that you will need to consult with an attorney one-on-one. There are several law firms in your area that can assist you in filing a claim. For more information on disability discrimination, please watch this 3-minute video -- http://www.youtube.com/watch?v=CsmLKwFqqSM

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