Do they have to return me to work

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Do they have to return me to work

I was an OTR lease operator. I was injured about 9 months ago. I am now released by my doctor. I am 68 years old. My company says they do not plan on accepting me back. I want to work for several more years. I was hurt performing work for this company. I think that my age has a lot to do with them not rehiring me.

Asked on March 11, 2016 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Two separate issues here: the injury/medical condition, and your age. To address the medical situation first, if you were still employed by your employer but on legal leave, the employer may not refuse to take you back after your leave is up because you had been injured or have a medical condition, or because you used legal leave: that would likely be one or more of illegal disability-based discrimination or retaliation for using legal leave,  If you believe this was the case, contact your state equal/civil rights agency or the federal EEOC to file a complaint. (Note if you think the main cause was not discrimination but retaliation over leave, then contact the state labor department.)
Similarly, if you believe that the only reason you are not being taken back is your age, that may be illegal age-based discrimination, and you may have grounds to file a complaint.
However, despite your age and the medical issues, there are valid grounds for not taking you back:
First, if you were not on leave but actually left employment for a time, they do not have to create a new position for you, such as if they had, in the meantime, filled your position with someone else; not-discriminating does not entail making up an opening for an employee when none currently exists.
Second, if the injury was due to something you did (e.g. you were careless at work or ignored some safety rule/regulation), they do not need to take you back: your carelessness (which could put them at risk of liability or put coworkers at risk) is justification for not employing you.
Third, if you had some unrelated issues--e.g. violating rules/regulations or employer directives; insubordination; absenteeism--they would be allowed to not take you back for those reasons.
So the specific facts are critical to determinging your rights. Again, if you think there's any reasonable chance this action was due to your age or medical issue/injury or using legal leave, then it's worth talking to the EEOC or your state equal/civil rights agency--the conversation with them, to explore the situation, is free.
 


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