Can your workplace not give you your job back when you take disability?

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Can your workplace not give you your job back when you take disability?

I work in a restaurant and I dislocated my knee (not on the job) and had to take off 3 months. My boss is now telling me that she has no shifts for me because she had to hire someone to replace me while I was out. Is that legal?

Asked on February 13, 2012 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

If you validly took Family and Medical Leave Act leave or its state equivalent, then the company has to re-employ you upon your return, at either the same or a comparable position. To have qualified for FMLA leave (and its state-law equivalents generally have the same requirements), the employer must have at least 50 employees within a 75-mile radius; you must have worked there, more-or-less full time, for a year; and the medical condition must have been serious enough to qualify. (You can see what that entails at the Department of Labor website.)

If you did not take FMLA leave or its equivalent, then the employer does not need to re-employ you or hold your job for you, even if you were receiving disability compensation while out of work.


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