Protections After End of FMLA Leave

[JulieTW]

My question involves labor and employment law for the state of: NY So, in May of 2009 I had to have emergency back surgery. I have Type 1 diabetes and it takes longer for me to heal than other people. I had FMLA at work for my diabetes prior to having the surgery, but my employers told me that FMLA runs concurrent with disability. So... I tried to go back to work 2 weeks after my back surgery, but it was really too much for me. I went to my HR office and told them, and asked them what I should do? I didnt want to use all of my FMLA time cuz I knew even after I healed from my back surgery.. I still have diabetes.. that will never go away. My HR person told me that I wouldnt have to worry because I am protected under ADA, and then told me to take the time I need to heal, and so with that being said, I took the time to heal, and after speaking with her, she sent me the paperwork for ADA and I was to turn it in when I go back to work. I was going to return to work in August part time at first and work my way to full-time. But, on July 31, 2009; Hr sent me a letter stating my FMLA time has been used up as of 6/30/2009 and they no longer have to hold my position. So, being out on disability basically made me lose my job, I called HR and they told me that there is no job for me to come back to and when I get released if there is a position for me to come back to I will come back as a new employee. I have been with this company for 7 years. I have had outstanding evaluations and have never had any disciplinary actions against me. I was beyond shocked to find out I have no job to go back to when my doctor releases me to return to work. Is this legal to do? I mean I have Type 1 diabetes and I know I have some protection.

[LawResearcherMissy]

By my math, if you had the surgery in May and your HR department said your FMLA time was done on June 30th, that's a maximum of 8 weeks. FMLA grants 12 weeks unpaid leave.

Did you use any FMLA time prior to that?

I was beyond shocked to find out I have no job to go back to when my doctor releases me to return to work. Is this legal to do?

Yes, it is. If you're not able to fulfill your job duties, the employer is not obligated to hold your job for you.

I mean I have Type 1 diabetes and I know I have some protection.

What protections do you think those might be? Your employer needs to make reasonable accommodations for your disease - such as allowing you to go off to inject yourself with insulin as necessary - and may not fire you for being diabetic.

The law, however, does not prevent your employer for terminating you for being unable to fulfill your job duties.

[Betty3]

You said you had FMLA for your diabetes prior to your surgery. How much total FMLA time did you use for your diabetes & back surgery? When in May (actual date) did you have back surgery? Thanks.

[JulieTW]

I had 307 hours of FMLA time left. I went out and used all of my FMLA time, which I understood, but when my HR office told me that I would use ADA after FMLA.. I thought my job was protected.

[Betty3]

Ok, so you used up your 12 weeks of FMLA job protected leave.

Under the ADA they can't discriminate against you due to your disability & can't take adverse action against you due to your disability (ie fire you, demote you) as long as you can do your job without an accommodation or with a reasonable accommodation. A reasonable accommodation "could/might" be add'l. time off from work or part-time work for a period of time. However; if there is no job for you, they don't have to create one.

[JulieTW]

so .. i went into my doctors today, and told him that he had to release me back to work. He released me as of tomorrow. I went into my work and gave them the release form, and then informed me they would have to call me and let me know about being reinstated. Which is fine. I also turned in some ada paperwork they had sent me. The reply I had gotten from it was a little wierd. They told me, they werent sure why I was turning it in since ADA runs concurrent with FMLA ...they took it, but just shook their heads. I said, you sent this to me, and I pulled the letter out stating that it said to turn it in when I was released back to work. They then told me.. you have no more FMLA time which would mean you have no ADA time. I wasnt asking for any time.. I was just turning in the paperwork. It was my understanding that ADA would be if my insulin pump died at work or something and I need to leave to have it fixed or if I had a reaction before I came in ADA would let me take care of myself before I came in to work. Those are they type of accomodations I was asking with ADA. (pretty much what I had FMLA for before it got used up with my back surgery) They acted like they had no idea what I was talking about. Is FMLA and ADA concurrent ? I didnt think they were. I know that FMLA is for 12 weeks. And that ADA is a reasonable accomadation that has no time limitation.

[PattyPA]

There is no such thing as "ADA time".

[cbg]

I thought I posted this but it disappeared.

The ADA is a law that say you have to receive a reasonable accomodation for a disability that meets the statutory definition. It is not leave time. In SOME situations, a SHORT extension of FMLA can be considered a reasonable accomodation but ADA is not leave and does not guarantee you additional leave.

[LawResearcherMissy]

Is FMLA and ADA concurrent ?

No, because one is leave time, and one is a legal requirement to provide reasonable accommodation.

They're entirely different things.