Can I be fired after 12 weeks of FMLA before going on STD?

Question Details:Employee was injured and was on FMLA for the remainder of FMLA before eligible for STD. She has recently been told by HR that her FMLA will be over on the 6th but her surgery isn't scheduled until the 9th and there is no way she can be back at work by the 6th. Does STD offer any additional time rather that the 12 days of FMLA. This is a serious injury. She works for a large corporation in GA and has worked for them over 6 years. She is not in a "Key Position" but they are very strict on the 12 days of FMLA leave. It seems STD should account for some time for the surgery.

Asked 2 years ago under Employment and Labor | 557 Views | More Legal Topics

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E.M., Member, California Bar | FreeAdvice Contributing Attorney Answered 2 years ago

IF you have doctor's orders with respect to the injury/disability that you have written about then the disability period precluding the employee's return to work can overlap the twelve (12) days off under FMLA (Federal Medical Leave Act).

I suggest that you get your treating physician to write up a written work release as to you based upon your disability and submit such immediately to your company's human resources department with an expected date of return.

As to being terminated because of such, your employer potentially could do so, but to legally be able to terminate you due to a disability it must be demonstrated that there has been a down turn in the economy justifying cost cutting measures or that you simply are no longer capable of doing the job that you do.

I suggest that you follow up with this answer by consulting with an attorney that practices employment law.

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