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If you go out on medical leave, can an employer just not take you back once the doctor has cleared you to go back to work?

San Diego, CA |

I work 2 jobs , one full and one part - time . At the beginning of this year I had to go out on medical leave ; my full time job pays my benefits and they paid my disability while I was out on medical leave , my part - time job has no benefits . When I was cleared to go back to work , my part - time job told me that they were not sure what I could do or whether they had room for me , since they hired someone else in the interim . I should note , I shared my night job with someone else , who quit and then after the company hired someone , decided to " unquiet " . They allowed this person to " unquiet " , but have left me hanging on whether or not I can come back . and they won't allow me to work for another company in the same industry since I'm technically still on their books . Is this legal ?

I had a hysterectomy and was OK'd to go back to work. and have had no problems in my full-time day job, just my part-time night job. I work as a word processor in the night job and I have no restrictions on doing the work. I told both jobs in advance and asked the second job if they needed any written confirmation and they said no since I didn't get my benefits from them; they would just put me down as on a leave of absence.

Attorney Answers 3

  1. The answer to your question unfortunately will require more information to give you more definitive direction. For instance, the duration you were out, the size of your employer, the nature of your job, the communications received by your employer about your prognosis while you were out, and the restrictions, if any, still placed on you on your return to work are all important factors that can change the answer.

    Your best move would be to find and consult with an employment lawyer and allow that attorney to ask all of the necessary questions to learn what is needed to give you some quality advice.

    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.

  2. If the company is discrimating against you because of your disability or medical condition, you may have a case. However, more info is needed to analyze your situation.

  3. There are various sources of POTENTIAL protection related to your medical status.

    If the condition is due to a disability as defined by law, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) and the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) may provide some protection. Please look at my guide on the ADA: and also on the differences between the ADA and California’s more generous FEHA: The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). * * A leave of absence can be a proper reasonable accommodation. * *

    There is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law. You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) and the California Family Rights Act, Government Code section 12945.2 (CFRA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you have a serious medical condition as defined by the FMLA. The FMLA allows employees to take leaves of absence from work without repercussion, up to a maximum of 12 weeks per year. Leave can be in increments as short as fractions of an hour.

    Please look at my guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) to see if that law applies in your situation: California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

    Your rights under each of these laws are independent of one another. That is, you may be entitled to protection from each of these laws at the same time.

    Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

    I hope you can resolve your situation and wish you the best. *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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