If 4 months ago I gave notice to my employers that I would need to take leave due to cancer diagnosis and immediate treatment, now that I can come back do I have rights to my old job?

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If 4 months ago I gave notice to my employers that I would need to take leave due to cancer diagnosis and immediate treatment, now that I can come back do I have rights to my old job?

They were notified throughout that tie that I would be able to return to work (doctor release) by this month. They reciprocated that I would have my job back at that time. It’s time, and they are telling me do to the slow months at the restaurant, and labor laws, that they do not have any shift available for me at this time and not sure when they will. Do I have any legal standing to say otherwise and take my place back at work?

Asked on January 27, 2016 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

An employer is not obligated to hold your job for you while you undergo medical treatment unless 1) you are eligible for, and your employer covered by, FMLA leave and you use it (and do not take more leave than the 12 weeks you are permitted); or 2) you use accumulated paid time off or PTO (e.g. sick and vacation days) to cover the absence. (Regarding FMLA leave: you can find the criteria for it on the U.S Dept. of Labor website, but in brief, unless the employer has at least 50 employees, they would not be covered; and even if they are, you would have had to have worked there at year, and worked at least 1,250 hours over the last 12 months.) So if you didn't use FMLA leave and/or PTO for the absence, they would not have to hold you job.
Even if the did have to hold your job, that does not protect you from a reduction in hours or a layoff due to economic circumstances, downsizing, etc.--while they could not let you go because you took leave if you used FMLA or PTO, they are not obligated to "make up" work for you if they don't have actually have work, such as due to the season, slow sales, etc.


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