Legal Question in Disability Law in California

layed-off while on disability

I had a hysterectomy surgery on 02/12/2009. Before leaving for 6 to 8 weeks, the Human Resource person from work said that I had my place assured that when in disability i had my work station assured that the

company would not be able to

fire me but while on disability;

on Feb 27 I got a call from HR that I was layed off and that they would send me a compensation package 1 week paid for every yr there (working there for 12 years) and that we would have free family health insurance for 3 month but now I feel very overwhelmed and

stressed ; without a job in these hardship times, I spoke to the HR person that assured me that I had my job assured while in disability but she said all was legal that they had consulted lawyers before taking any actions and that since this was a company wide lay-off because the company is loosing money not enough sales they had to lay me off. (total of 44 layed off in several buildings world wide, 3 in our office ( I was one of the three)

and around 12 others persons in manufacturing from this building) HR insists that there was no illegal action on their part; Is this true can a person be layed-off while in short term disability?

Please advise.


Asked on 3/03/09, 10:43 am

1 Answer from Attorneys
Terry A. Nelson Nelson & Lawless

Re: layed-off while on disability

Of course they 'can' lay you off. You were. If you intend to make a claim of improper / 'illegal' lay off, you have to show that you were selected over others 'because of' your leave. You said 3 in your office were laid off. If they were all of comparable job category, seniority, etc., and you could have / would have reasonably been included in the group for lay off even if you hadn't been on leave, then you wouldn't be able to prove the 'because of leave' standard. Think of it this way: if while you were on leave, the company went broke and needed to fire everyone, would it be 'illegal' for them to lay you off? No. The law protects you from unequal discriminatory or retaliatory treatment, not from necessary and proper business decisions.

Now, if you still think you have a valid claim, you have to meet this requirement:

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 medical leave, continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. If you are out longer than those guarantees, they can fire you.

Now, if they violate those rules, contact me for the legal help you'll need.

Read more
Answered on 3/03/09, 2:59 pm


Related Questions & Answers

More Disability Discrimination Law (ADA) questions and answers in California