Can my employer advertise my position at work while I am on Disability Leave?

Hello, I was out on a month long disabiltiy leave due to a biopsy that has proven a diagnosed disease. During the time I was home, I noticed on my work blackberry that my position was being advertised for. I was the only person in my department and had been for 4 1/2 years.I believe this is illegal. Yes? When I called the "Director" and brought this issue to her attention she chukled said "Oh I know that, we were going to create a new position of you." Please let me know if in fact my employer commitied unfair pratice and if in fact this was illegal due to my protected status. I am 55 years old and have a physical disablity. Thank you in advance and await your relpy.

2 answers  |  asked Nov 11, 2009 9:49 PM [EST]  |  applies to California

Answers (2)

George Allen
Nothing illegal happened ... yet. Your employer may need to fill that position during your absence. The real question is what happens when you are prepared to return to work. You should be able to return to the same position. However, this can be a very fact-intensive question. If you return to the same position, no violation has happened. If you return to a very, very similar position, it won't be worth pursuing. If they try to put you in a significantly inferior position when you return, then contact an attorney.

George Allen
Sacramento, CA

posted by George Allen  |  Nov 12, 2009 12:16 PM [EST]
Arkady Itkin

This is a very good question. It is not illegal for the employer to seek temporary worker for your position if you are out on disability. Generally, your employer has to reinstate you to a similar or comparable position upon return. This means that if your employer will really create a new position, which will be comparable in terms, conditions and compensation to your prior position, they will satisfy their obligation under the disability laws.


Arkady Itkin
San Francisco & Sacramento Employment Lawyer

posted by Arkady Itkin  |  Nov 11, 2009 10:03 PM [EST]

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