I was removed from a project after FMLA leave. i have full clearance. do i have a discrimination or retaliation case?

Asked 12 months ago - Wilmington, CA

i was told because of possible flare ups they couldn't have me on the project. i have a full release from my doctor and company doctor. i have worked other projects in the past with a open FMLA claim.

Attorney answers (6)

  1. Michael Robert Kirschbaum

    Contributor Level 20

    3

    Lawyers agree

    Answered . If you have a disability or the employer perceives that you have a disability, it cannot deny you reinstatement to your position because of some concerns of what can possibly happen. If you were released to return to work without restriction, it would be unlawful for the employer to refuse to allow you to return to work because of assumptions related to your disability. However, it is not clear whether you have been prevented from working or whether you had one job assignment removed from your responsibilities.

    It is always advisable to consult with an experienced employment law attorney, who will need to review all of the facts, before you decide what your next course of action should be.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion... more
  2. Craig Trent Byrnes

    Pro

    Contributor Level 15

    3

    Lawyers agree

    Answered . It is illegal to discriminate against someone with a disability. If your medical condition qualifies as a disability under California's Fair Employment & Housing Act ("FEHA"), they must return you to your previous position if you can perform its primary functions with or without a reasonable accommodation.

    It is illegal for them to refuse to return you to work because of a generalized fear of a "flare up." They don't get to make that call. If your doctor (and even the company doctor) has released you to return to work, then you get to go back to work.

    You might consider writing your employer a calm and professional letter, explaining their obligations under the FEHA and the California Family Rights Act/FMLA. If you feel that you have been illegally discriminated against, and you choose to take legal action, make sure to do so within your statute of limitations period, or your right to do so may be lost forever.

    Good luck with your legal issues.

    Sincerely,
    Craig T. Byrnes
    www.ctblawfirm.com
    310-706-4177

    Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with... more
  3. Daniel Michael Holzman

    Pro

    Contributor Level 15

    2

    Lawyers agree

    Answered . You should talk to an employment lawyer about the specific facts of your case.

    1) An employer is supposed to work within your restrictions as long as they are "reasonable" and don't cause and "undue hardship" for the employer.
    2) The fact that you have "no restrictions" should not prevent you from returning to your project.

    This should be explored further. An attorney shouldn't charge you for the phone consultation.

    Best of luck.

    www.laemploymentlawyers.com

  4. Sagar P. Parikh

    Contributor Level 19

    1

    Lawyer agrees

    Answered . You may have a good claim, but a full consultation would be needed to advise you properly.

  5. Kristine S Karila

    Contributor Level 16

    1

    Lawyer agrees

    Answered . You may possibly have a very good case, but more facts need to be known. What is the project and what is the risk if you had another flare up? What is your med. condition and prognosis? Have you exceeded your eligible FMLA time? There may be FMLA violations as well as unlawful discrimination/retaliation and refusal to reasonably accommodate your med. condition. Call an employment law attorney to discuss.

  6. Arkady Igor Itkin

    Pro

    Contributor Level 13

    1

    Lawyer agrees

    Answered . It sounds like you may have a potential FMLA violation claim but more facts are needed to determine this, including # of employees at the company where you worked, the specific nature of your condition and diagnosis, your job duties, and a few other facts.

    Thanks,

    Arkady Itkin

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