My rights to reinstatement after leave of absence

I agree, Bruce. The only other avenue that could be viable is if a Union is involved, which is suggested as a possibility by the questioner's comment regarding seniority. Seniority is irrelevant if there is no Union. If could be relevant, however, under the company's stated policies, as Bruce has already pointed out.

posted by David Neel  |  Dec 30, 2009 10:15 AM [EST]

The Americans with Disabilities Act applies to employers with over 15 employees. Cancer is sometimes considered a disability under the ADA, though not always. A disability as outlined by the ADA is: 1) a long-term condition that limits one or more major life activities, 2) one with a history of such limitation in the past, or 3) one who has been regarded as having such a limitation. Some examples of major life activities include bathing, eating, or other activities that are required in most people's daily lives.

There are a couple indicators that will help determine whether you are protected the by the provisions of the ADA :(1) You must be qualified for the job; and (2) You must be able to perform the essential functions of the job either on your own or with reasonable accomodation from the employer.

If you are a qualified person with a disability, it is illegal for an employer to discriminate against you on the basis of your disability. However, the law does allow for an employer to layoff or terminate the employment of a qualified disabled person for legitimate business reasons. If the employer can show that the accomodation needed by the disabled worker represents an undue hardship, the employer could prevail on a claim of disability discrimination. Additionally, if you did not ask for an accomodation (time off in this case), the employer is not required to provide one. Keep in mind that the law does not contemplate employees literally requesting an "accomodation", only that you request what you need.

Other factors that will need to be examined include your employer's leave policy, the requests/approvals for time off for your treatment, whether FMLA applied for any of your time off(based on the employer's method of calculating FMLA entitlement), prior discriminatory acts by this employer, and the list goes on. If you wish to explore the possibility of a disability claim, you should seek formal advice from a plaintiff-side employment attorney in your area immediately. This will allow someone to thoroughly review the facts and circumstances surrounding your situation. It is imperative that you review all the circumstances with someone who can spend a lot of time taking in all the information and give you solid legal advice and opinons. There are strict time limitations for filing charges of discrimination, so talk with someone sooner rather than later.

I hope this information was helpful. You might also consider contacting the American Cancer Society to determine what types of legal aid or other resources are available to you. This is not a new issue for cancer patients. I wish you the best in your recovery and in rectifying your legal matters.

posted by Kelly Trautner  |  Dec 30, 2009 07:50 AM [EST]

While there are many protections under different laws, in general the FMLA only provides for automatic reinstatement when the leave does not exceed 12 weeks in any year. The six months you were off exceeds this amount of time. In general you need to look to the company's policies, many larger companies will provide for short term and long term disability with reinstatement to work, even if not to the same job assignment.

You should discuss the policies and get the documents from HR or your manual. Then see an employment attorney to review your rights and decide what you can and/or should do. You can select an employment attorney near you at www.oelasmart.net/directory

Regards, Bruce Elfvin

posted by Bruce Elfvin  |  Dec 30, 2009 07:25 AM [EST]