Lancaster, CA asked in Employment Law for California

Q: Should my employer lay me off at my request following lengthy medical leave?

I have been off for over a year due to spine surgery and subsequent difficulties.My neurosurgeon states I am not able to return to that work currently and is unsure how long before some of my difficulties will be improved enough to return. I sent my boss an email on June 28th giving her my medical update and my inability to return and told her I understand if she needs to lay me off and fill my position since I am unable to give her a time I can return.I have been gone for a little over a year from a top executive management position in the organization. I am about to turn 52 so I understand I am in a protected class. She said she was going to discuss with our board and get back to me with their decision. She has not gotten back to me. I feel like there's no decision to be made as I have given her a legal path for which to fill my position. I currently have no income since my temporary disability was exhausted and she is keeping me in limbo as to whether she will lay me off. Options?

Related Topics:
1 Lawyer Answer
Neil Pedersen
Neil Pedersen
Answered
  • Westminster, CA
  • Licensed in California

A: More would need to be known about your situation before someone could give you solid advice upon which you can rely. When you are incapable of performing your regular job, even with modification of the way you normally perform the duties of that job, the employer is required to place you on a relatively defined period of unpaid leave to allow you to heal and return to your job. An employer, however, is not required to keep the position open for an indefinite period of time, or for a very long period of time, if doing so would constitute an undue hardship on the employer. It is not unlawful for an employer to keep you on the books for years if it desires to do so. It is also not unlawful for the employer to terminate you if you continue to be on indeterminate leave even after a year off of work.

It is curious that you call your situation as being placed in limbo by the employer. You always have the option of resigning. The employer keeping you on the books is almost always a good thing, leaving open the opportunity to return to work if you heal.

If your doctor believes you will never be able to return to your job, or any job, you should look into making application for Social Security Disability benefits. Move quickly because it can take a good amount of time to qualify for that, and if you are have already exhausted your SDI benefits, there will be little available to you other than public assistance (food stamps, etc.) to sustain you until those benefits are procured.

Good luck to you.

1 user found this answer helpful

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.