Can my employer terminate me and stop my FMLA after an accident?

I seriously injured myself at home and after using all of my sick and vacation leave, was put on FMLA. I have received 4 of my 12 weeks of short term disability. After a necessary MRI and a subsequent visit to the orthopedic surgeon, I was informed that I would need surgery and recovery time amounting to 4 months. After giving the requested documents stating this to the HR representative on the same day, I was told that I was probably going to be terminated and my position filled. Suddenly, my short term disability has stopped, and I show no documented FMLA on my employee portal. I was a model employee, and received employee of the month prior to my accident.

Asked on September 23, 2015 under Employment Labor Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

The employer may not pre-emptively stop your FMLA leave because you have indicated that you will need significantly more time out of work than you can cover with PTO and FMLA. As long as you still have leave, you may use it. However, if at the end of leave, you do not return to work and do not have PTO to cover the continuing absence, they may terminate you then, since the law does not require an employer to retain an employee who cannot work when she does not have PTO or FMLA leave to cover the absence. Therefore, they appear to have jumped the gun, and you may have a legal claim against your employer you should contact your state department of labor to discuss the matter and possibly file a complaint.


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