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When a Medical Leave Becomes a Disability

Posted by Scott M. Peterson | Oct 13, 2015 | 0 Comments

Medleave

When a medical leave becomes a disability

The intersection between the Family & Medical Leave Act and NY and Federal disability discrimination laws is a complicated one.  But it's one that can make a significant difference on your potential case.

Let's say you've been out for 12 weeks of approved FMLA time after having surgery to remove a cancerous mass from your leg.  As the end of the 12 weeks nears your doctor tells you that you'll probably need another week or two of recovery in order to be able to return to work in a full capacity.

You reach out to your employer and at this point ask them if they are willing to allow you to return to work in a limited capacity for one week until your leg heals fully.  Your employer, without considering the request for even an instant, denies it and tells you that if you're not back at the end of the 12 weeks – full time – you're fired.  Unable to return you lose your job.

The question is whether your employer had any obligation to give you time after the 12 weeks of approved FMLA time.  The answer is that it depends.

The FMLA does not require an employer to give you time beyond the 12 weeks required by law.  The New York State Human Rights law, however (and to some extent the Americans with Disabilities Act) does on some occasions require an employer to consider any request for a reasonable accommodation as a result of a disability.

In this example your request for an additional one week to complete your healing is probably reasonable, and even if you are not protected under the FMLA for the firing you may have some rights under the New York State Human Rights Law for disability discrimination.

No matter what, if you were terminated following a medical leave you should consider contacting an employment discrimination attorney.  Employers often take actions without knowing their legal obligations, and in those situations an experienced employment discrimination lawyer may be able to help.

Give us a call today, we're happy to answer your questions.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on exclusively representing individuals in a small number of employment and serious injury/medical malpractice matters. Scott's favorite part of practicing law is getting in front of a jury and standing up for an individual against a large company or institution.

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