California  |  Disability Law

The answer depends on many factors. After the 12 week job protection afforded by the FMLA, there is no law that states an employer must preserve an employee's job, but a qualified disabled employee can ask an employer to hold their job open for them, as a form of reasonable accommodation for their disability, if the extended leave is reasonably short and defined. The longer the leave and the more uncertain the return date, the more difficult it will be to be accommodated.

Whether an employer must grant such an extension depends on many factors, including the size of the company and the hardship the employee's absence creates for his co-workers and the company's business. Also to be considered are the company leave policies and how they have been implemented in the past.

If your husband is unsure of his rights, he should consult with an experienced employment law attorney in your area.

If this is an on job injury WCAB claim, or a claim of retaliation or failure to comply with WCAB protections, contact a WCAB specialist for their help, as only WCAB rules apply. If not, then the following apply:

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, then you can consider legal claims.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA/CFRA maternity/medical leave when you are unable to work [or must care for an immediate family member] because of a ‘serious health condition’ that is properly confirmed and documented by your doctor, continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider.

If you are out longer than those guarantees, they can fire you.

Overriding those stated protections, just because you are on leave does not mean you can’t be terminated. You have no special exemption against lay offs due to business reasons. A company in downsizing can lay off a FMLA leave person, as long as they can show they aren’t targeting ‘because of the leave’. They are simply risking claims if they do.

If your company has a policy requiring they hold your job for you for a specific period of time while on disability, that is enforceable.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Now, if they violated those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years.