Can your workplace not give you your job back when you take disability?

UPDATED: Feb 13, 2012

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Can your workplace not give you your job back when you take disability?

I work in a restaurant and I dislocated my knee (not on the job) and had to take off 3 months. My boss is now telling me that she has no shifts for me because she had to hire someone to replace me while I was out. Is that legal?

Asked on February 13, 2012 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

If you validly took Family and Medical Leave Act leave or its state equivalent, then the company has to re-employ you upon your return, at either the same or a comparable position. To have qualified for FMLA leave (and its state-law equivalents generally have the same requirements), the employer must have at least 50 employees within a 75-mile radius; you must have worked there, more-or-less full time, for a year; and the medical condition must have been serious enough to qualify. (You can see what that entails at the Department of Labor website.)

If you did not take FMLA leave or its equivalent, then the employer does not need to re-employ you or hold your job for you, even if you were receiving disability compensation while out of work.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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