Can my employer force my resignation while on a family medical leave?

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Can my employer force my resignation while on a family medical leave?

I was on a paid leave of absence while taking care of a parent. Eventually my paid leave expired and I was then on unpaid leave. After about 6 months on unpaid leave, my employer requested that I return to work or would be considered to have “abandoned” my job. I was sent papers to resign; if I did not it would be considered as abandonment my employment. Is this legal?

Asked on September 29, 2010 under Employment Labor Law, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You say you were on unpaid leave for 6 months; however, generally speaking, even if an employer is covered by the law (the Family and Medical Leave Act or the New Jersey Family and Medical Leave Act), you are only guaranteed up to 12 weeks of unpaid leave. Therefore, if you took 6 months leave, unless you were contractually guaranteed it (including by a union agreement), you were given it basically by the employer's generosity--they are under no oblilgation to provide that much leave. Since it was voluntary to provide that much leave, they could decline to provide any additional leave and may consider that you quit, etc. if you don't come back--so this does appear legal. Note also that even under FMLA or NJFLA, there are various requirements you'd have to comply with in terms of notice, reporting, etc., and if you did not, the employer could likely have terminated you during the 3 months of leave provided by law.


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