Can an employer try to force you into resigning by giving away your job while out on leave without pay due to an injury that happened at work?

UPDATED: Sep 30, 2022

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Can an employer try to force you into resigning by giving away your job while out on leave without pay due to an injury that happened at work?

I was injured in an auto accident while traveling for work and I have been off work and recieving workmans comp benefits for 6 months. I have exhausted all of my FMLA and the doctors say I still have up to 12 months before I will be able to return to work. My employer said they could not hold my job for that long and needed to fill it on a permanent basis and asked me to resign. I refused to resign because I know if I were to resign I will not be entitled to any unemployment benefits once I would be able to collect them until I find a new job. They proceeded to write me a letter stating they were filling my position however when I am able to return to work I can apply for any job I qualify for. If there are none available then they will separate my employment. I responded by asking them to clarify if I was still employed with them even though I had no job they confirmed that was the case and also informed me that they will no longer pay the employer premiums on my health benefits. So basically I feel like they are trying to force me to resign either now or later. I have my Masters degree and qualify for most positions within the company but most are a third of what I currently get paid, and the company extends to multiple other states. There is not another state or position within the company that I would want, so basically if I am not willing to take any open positon within the company then I will have to resign and will not get any benefits. Is it legal for them to give my job away but not separate my employment and not offer any benefits of employment? That doesn’t make sense to me.

Asked on September 13, 2016 under Employment Labor Law, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Actually, if you have been absent beyond what is covered by FMLA and/or by the use of PTO (e.g. sick or vacation days) which you earned, you could be fired right now "for cause" for excessive absenteeim, even if the reason for the absenteeism is medical, which would result in you being denied unemployment as well as potentially looking worse for you in the future (e.g. if a future prospetive employer called to verify employment and reason for separation, they could say you were fired for cause for absenteeism). What they are offering you is actually better than what they have to do, so while you are correct, in that they can't "force" you to resign and should separate your employment now if they are not holding your job, if you push them on this, they may opt to go instead down the "fired for cause" route, which would work out worse for you.

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