Legal Question in Employment Law in California

Job reinstatement in California. I have been on disability for 14 months. Is my (>1000 employee) company legally required to reinstate me, or is there a 6 month limit ? How soon would I have to return , assuming I was fully recovered.

Asked on 12/10/12, 11:12 am

2 Answers from Attorneys

Terry A. Nelson Nelson & Lawless
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If not in a union, and if your CA employer has at least 50 employees, and you are employed for at least 12 months and 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 medical leave when you are unable to work because of a ‘SERIOUS health condition’, continuation of any group health benefits, restoration to the same or an equivalent job upon return to work, with any accrued benefits.

If your employer has a written policy requiring they hold your job for you for a specific period of time while on disability, longer than the FMLA / CFRA rules provide, that is enforceable.

If you qualify for leave protection and return to work under those guidelines, feel free to contact me.

If you were in a union, that contract and rules apply, talk to your rep

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Answered on 12/10/12, 1:44 pm
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There is no firm limit on the amount of time an employer has to hold your job open for you. Rather, it depends on the specific factual circumstances. If your medical condition qualifies as a disability (which, if it required you to be off work for 14 months, I suspect it does), you may be protected by the Fair Employment and Housing Act (FEHA). Under the FEHA, the employer is required to reasonably accommodate your disability. A leave of absence is one type of reasonable accommodation. There is no specific length of time that is reasonable for a medical leave under the FEHA. Rather, the employer must have a conversation with you about how much time off you need and make a determination whether providing you that amount of time off will pose an undue hardship on the company. If it will not pose an undue hardship on the company to give you the additional time off, then the employer must give you the time off and reinstate you at the conclusion of your leave. The employer cannot simply fire you once your 12 weeks of CFRA/FMLA leave are up. Rather, the employer must have a conversation with you about how much time you need and make a determination whether providing you that amount of leave will pose an undue hardship on the company.

That being said, 14 months is quite a long time, and the employer may have a good argument that holding the position open for that long does in fact pose an undue hardship on the company. If you are completely healed and ready to return to work, find out whether the position has been filled, and if not, talk to your employer about reinstating or rehiring you into the position. Keep in mind that the employer is not permitted to discriminate or retaliate against you for having had a disability in determining whether to reinstate or rehire you.

Disability cases are quite fact specific, and require a personalized legal analysis of the specific factual circumstances. If you have further questions, please feel free to call our office at (415) 788-0888.

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Answered on 12/10/12, 4:54 pm

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