Legal Question in Disability Law in New Jersey

Terminated while on disability /n NJ

I went out on fmla/Short term Disability on 12/15/08-6/15/09. My employer informed me to contact them when I am ready to return to wrok,as I did call leaving messages with no response. I recently called and was informed that they can--name removed--bring me back to work due to new rules. My termination date was put in as 12/15/08 so i can collect my 401k. I wasn--name removed--sent any letter,as to when I was terminated. The employer also informed me they are on a freeze of hiring,I know of some relatives who were hired and are currently working in my post employment. I applied for unemployment and I want to know will the state of NJ go back to 12/08 to pay benefits? or will the employer have to pay from 12/08 til now? Or do I have grounds for a lawsuit?

Asked on 7/01/09, 11:58 am

1 Answer from Attorneys

Randall Brett Law Office of Randall P. Brett
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Re: Terminated while on disability /n NJ

You ask several questions in your post. First, as for unemployment compensation you have to be available for work during the weeks you are claiming UC benefits. Since you said that you were on disability, I assume you were not available for work until 6/15/09. Therefore, you probably do not qualify for unemployment compensation for the time prior to June 15th. Second, since your leave was for your own disability, you are protected under the federal Family and Medical Leave Act (FMLA), not the New Jersey Family Leave Act. Under FMLA, your employer may be required to reinstate you to the same or substantially similar position, subject to certain execptions. One of those exceptions is if your position was eliminated while you were on disability. Another exception is if you are not "fit for duty"; in other words, you cannot perform the tasks and duties of your old position and there is not another position available that you could perform (although there may be ADA or NJLAD issues here). You should consult an attorney with experience in employment law to explore your legal rights and remedies. Please feel free to call my office for a consultation.

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7/01/09, 4:32 pm

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