If an employee is dismissed after an approved leave of absence, do they have any rights in regards tothis?

UPDATED: Jun 14, 2011

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If an employee is dismissed after an approved leave of absence, do they have any rights in regards tothis?

My friend was away from work on an “approved leave of absentce” for a heart transplant. On the 79th day he phone his employer to arrange for his return to work. His employer informed him that his services were no longer needed in his previous position; that maybe he could offer him some occasional side work. The company he worked for (for 30 years) is a small S corporation with 3 employees. He was replaced with a much younger person willing to work as a contractor without benefits or commission.

Asked on June 14, 2011 under Employment Labor Law, Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

It would be worthwhile for your friend to speak with an employment attorney--he may have a cause of action or claim.

First, age discrimination in employment is illegal (at least discrmination against someone age 40 or over, which I assume your friend is), soo his replacement with a younger person may be age discrimiantion.

Second, discrimination against the disabled is illegal, and depending on the circumstances, you friend *may* be considered to have had a  disability.

Third, agreements, including oral or verbal ones, are enforceable, and if there was an agreement that your friend could take leave then return, the company may have breached that.

Note that because of the small size of the employer, your friend would *not* have a claim under the Family and Medical Leave Act (FMLA).

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