I’m on disability leave and my employer sent an email that I will be terminated and no accommodations will be made for me if I don’t return back to work by the end of the 12 weeks of FMLA. My doctor has extended my disability three times now but I never was on FMLA and the company does not have FMLA since we have less than 50 employees. What if my doctor says I need to stay on disability longer, can they terminate me?
Your employer is clearly all mixed up about its obligations under the law, and it may well be walking itself into a very expensive mistake.
Whether or not a company and its employees fall under the requirements/protection of the FMLA you are still protected by other laws. Namely, in California you have the Fair Employment and Housing Act to provide protections that apply to you as long as your employer employs at least 5 employees.
Under the FEHA, your employer is required to provide you with unpaid leave for a relatively defined period of time to allow you to heal and be able to return to work as long as that unpaid leave does not cause the employer an undue hardship. Unless you hold a key position that cannot be replaced temporarily by others in the business or temporary employees, it will be difficult for an employer to be able to establish that it will face undue hardship by keeping your position open for a little while longer. However if your doctor has merely stated something like "off work until further notice" or something that sounds open-ended, you need to get back to the doctor right away and get a more defined estimate of when you will be able to return. An employer is not legally required to keep your position open indefinitely.
Upon your return, if your doctor places restrictions on your ability to perform your normal job, the employer will be duty-bound to provide you with reasonable accommodations to allow you to do your job unless doing so would create an undue hardship. To refuse you reasonable accommodations because you did not return by a unilaterally defined time by your employer would violate the law.
If you face any kind of adverse action from the employer it would be wise 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.
Most employment attorneys who practice this area of law offer a free or low cost consultation in the beginning and then, if the matter has merit and value, will usually agree to work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.
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.
I'm sorry this is happening to you.
Your employer has a number of things confused. You are protected by a few statutes. It really doesn't matter whether you're classified as FMLA ("Family & Medical Leave Act," which is the more famous version of the State's version, the California Family Rights Act, or "CFRA").
What matters is which statutes protect you, not how your employer classifies you. So don't worry if your employer "placed you on FMLA." That's not relevant.
What is relevant is that, if you have a disability, you are entitled to a reasonable accommodation that would allow you to perform the primary functions of your job. That can include time off, which can exceed the FMLA/CFRA requirements if need be.
If you believe that your rights have been violated, and you decide that you want to take legal 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
Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.
If your employer has at least 5 employees, the employer has a legal duty to "interact with you in good faith" to determine if the employer can "reasonably" accommodate your disability/serious medical condition - up to the point of undue hardship on the employer. Failure to interact with you/communicate to discuss ANY reasonable accommodations is a violation of your rights. And IF they refuse to reasonably accommodate you by further extending your leave, assuming that is not an undue hardship (financial) on the employer, they have violated your rights again.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline