Legal Question in Medical Leave in California

protections without FLMA

I have a short term disability that would normally provide protection under FMLA, but we have less than 50 employees so I am not eligible. I will need to miss work intermittently. My employer is now treating me differently, scrutinizing my work to a different level and seems to be ''setting up'' termination. Without FMLA do I have any protections against discrimination or harassment due to different treatment both from the interaction prior to their knowledge of the illness and in comparison to other employees? The stress is unbearable in combination of my illness.

Asked on 2/05/08, 9:53 am

3 Answers from Attorneys

Michael Kirschbaum Law Offices of Michael R. Kirschbaum
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Re: protections without FLMA

As you already know, the law that protects employees' jobs from having to take time off for a serious illness or injury is the FMLA or its California equivalent. But both laws were designed to apply to only large employers, defined as having 50 or more employees in a specific geographic area.

If you do not qualify for this protection, your best bet is to try to categorize your "short term disability" as a disability that is covered under the California Fair Employment and Housing Act, which prohibits discrimination against employees with qualified disabilities and requires employers to reasonably accommodate such employees, unless is causes an undue hardship to the employer.

This is a very tricky and argumentative area of law and not something that I can advise you of, with any specificity, on a forum such as this. You should really meet with an experienced employment law attorney in your area and discuss the details and options pertaining to your situation.

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2/05/08, 10:52 am
Terry A. Nelson Nelson & Lawless
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Re: protections without FLMA

Since apparently not qualified for FMLA protections, you'll have to hope to qualify for protection under ADA or related laws. If you've got a life altering and long term 'disability' recognized by the laws, which requires reasonable accommodation, I might be able to help. Short term temporary medical problems do not normally qualify.

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2/05/08, 1:41 pm
Alden Knisbacher Knisbacher Law Offices
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Re: protections without FLMA

Yes you have protections under the California version of the ADA (if your employer has 5 or more employees.) Your employer must provide reasonable accommodations which has been defined by the courts to include short terms of leave, reduced job schedules, etc. You are also protected from being harassed because of your disability. It is important that you document instances of harassment by your boss by formally filing complaints with your employer. You are best off doing that with the help of an employment attorney. Feel free to call my office (phone is on the website) -- or send an email to the address below, if you want to talk about this. Good luck

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2/05/08, 3:58 pm

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