Can my employer terminate me if not back by the end of the 12 weeks?

I have been on FMLA since 7/19/10 due to a serious illness. I used my 10 sick days from the start. My employer is using those days as my FMLA. Can they do that? I have been under the care of several specialist. I had my first surgery 8/3/10, but what was taken out was not what was causing my problem. I was referred to another specialist. The problem was noted, but because of the problem, medication and time was what I was doing for a while. Then sent to a surgeon who said no surgery. But the problem was not going away and no medication helped. I was sent to another surgeon who agreed with the original doctor that surgery would be needed. My surgery is scheduled for 9/30/10. I won't be out of the hospital until 10/4/10. My employer sent me a letter stating If I am not back to work by 10/6/10 I am terminated as of 10/5/10. and my position will be filled as soon as possible. My surgeon says I will need at least two weeks at home recovery. Which means I could return to work 10/18/10. Do I have any rights? I am so close to coming back to work. Any advise would be greatly appreciated. Thank you, Alicia

1 answer  |  asked Sep 29, 2010 09:47 AM [EST]  |  applies to Pennsylvania

Answers (1)

Harold Goldner
The Family and Medical Leave Act provides that eligible employees are able to take up to twelve weeks of leave and have their jobs preserved, however upon the expiry of the twelve weeks, they must be ready, willing and able to return to work without limitations.

If you are unable to perform the essential functions of your job within those 12 weeks, the employer is under no obligation to hold your job.

In addition, the employer is permitted to allocate sick leave, vacation leave, and any other applicable paid leaves towards the 12 weeks, which itself does not necessarily have to be paid leave.

Your employer appears to be completely compliant with the FMLA at this point.

posted by Harold Goldner  |  Sep 29, 2010 12:51 PM [EST]

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