I have been at my employer over 17 yrs, during that time I made several complaints to management about unsafe working conditions. Instead of correcting practices or conditions I was discriminated and threatened. Now, I was seriously injured in June of this year when my right arm (right handed) was crushed in a machine that malfunctioned and was stuck for over 20 min. with no help, not even through our emergency response channel. I was informed by a nerve specialists it will take a minimum of 1-2 years to get function of my arm and probably not at 100%. I was just informed through my employer that if I can't perform at 100% within 90 days I will be terminated. I already have a workmans comp attorney. Also during that time I was not allowed to take uninterrupted breaks or leave the plant.
The facts you set forth present a number of legal issues that you need to explore further with an employment law attorney. For example, if you are disabled as a result of your injury, your employer will have an affirmative obligation to explore whether there are any reasonable accommodations that will enable you to perform the essential functions of your job. You also raise other issues, such as discrimination or threats based upon your having reported safety violations, as well as the matter of breaks. Use the Find a Lawyer tab on Avvo to find an employment law attorney. Also, here’s a link to the California Employment Lawyers Association website where you can search for an employment law attorney in your area. CELA attorneys specialize in representing employees and many offer free consultations. Best of luck to you.
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An employer cannot insist that you be able to function at 100%, when you are disabled, without exploring alternatives, such as what they can do to reasonably accommodate you so you can perform the essential functions of your job. If you cannot perform the essential functions of your job, with or without a reasonable accommodation, the employer may be required to transfer you to an open position for which you are qualified. It also cannot tell you if you are not at 100% within 90 days, you are fired, without considering an extension of your medical leave as a form of reasonable accommodation unless it can show that to do so would create an undue hardship on the employer.
However, expecting them to keep your job available for 1 to 2 years is not likely a reasonable request. Workers compensation gurus may have another opinion on this.
There are many issues involved here and many laws which will apply. It seems you are covered on the workers compensation end. But you should consult with an employment law attorney in your area so you can understand what your rights and obligations are with respect to your employer.
It is unlawful to fire an employee BECAUSE of his/her medical condition/disability or BECAUSE he/she was injured on the job. It is also unlawful to retaliate against an employee for asserting his/her legal rights (safety). It is also unlawful to not provide the opportunity for nonexempt employees to take at least 2 ten minute paid breaks and at least a thirty minute duty-free unpaid meal period if the employee works 8 hours. If meal/break laws are violated, the employee(s) is due one hour of pay for each violation. Call an employment law attorney to discuss. Many of us offer a free initial phone consultation.
I'm very sorry you're going through this, and I hope your recovery is speedy and complete.
It is illegal to discriminate against someone with a disability, including limited function of an arm. It is also illegal to require you arbitrarily to "perform at 100%." The law requires the employer to engage in a good faith, interactive process with you to determine if there are reasonable accommodations that would allow you to perform the primary functions of your job.
Here, the employer sounds like he is arbitrarily threatening your job, without engaging in any type of interactive process, let alone a good faith one.
Moreover, if your employer has 50 or more employees, you may be entitled to 12 weeks of unpaid leave to recuperate under the FMLA/CFRA.
If you believe that you are being discriminated against on the basis of your disability, or that you are being denied FMLA/CFRA leave, and you decide to take action, make sure to do so within your statute of limitations or your rights may be lost forever.
I hope this information is helpful to you.
Craig T. Byrnes
If you are in fact terminated after 90 days, your termination will like be unlawful under disability discrimination laws.
There are a few critical strategic steps you can and probably should take to enhance your claim. First, whether an employer has to wait for you to return to work for 2 years after an injury is a big question, and unless the company is very large, then the answer is likely "no". Therefore, among other things, if you and your doctor believe that you will be able to come back to work with limitations sooner (i.e. in 4 months or six moths, etc), you should obtain that kind of document and provide it to your employer as soon as possible and before you are terminated.
I agree with other attorneys - you should consult with an experienced employment attorney to further discuss your situation sooner than later.
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