If i cannot return to work once my 12 weeks of FMLA time is up, does my employer have the right to fire me?

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If i cannot return to work once my 12 weeks of FMLA time is up, does my employer have the right to fire me?

I had been off of work for 12 weeks due to a back problem and I was covered under FMLA from my employer. Once this time was exhausted, my employer said I had to return to work or I would be terminated. I was receiving short term disabilty and I had the necessary paperwork to prove my out of work status. I could not physically return to work and my doctor also would not allow me. Is my employer able to terminate me?

Asked on December 5, 2016 under Employment Labor Law, Delaware

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

A worker cannot be terminated so long as an absence is covered under FMLA, PTO (sick days/vacation time), or have protection under the terms of any applicable empolyment contract or union agreement. Otherwise, an employee can be terminated from their job. The fact is that as a general rule, a company can set the conditions of employment much as it sees fit.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Yes, if you use up your FMLA leave and then do not return to work and/or have and use paid time off to cover any additional absence, you may be terminated. FMLA specifies how much time you can get off for a medical issue or treatment; you have no right to more time off than that (unless using PTO), and the law does not require employers to keep employees who miss work without using FMLA or PTO.


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