Is it legal to demote employee without notice when FMLA has expired?

Thanks for your question. You may have a claim for wrongful demotion under the ADA or, better it's State equivalent, the Fair Employment and Housing Act. These laws require that a job be held for you while you are on a finite medical leave of absence. How long the company needs to hold your job depends on what is reasonable in each case. There is no set amount of time allotted but I think that up to a year (or more) can be reasonable for a large employer.

Also, you should have received prior notice that your FMLA was expiring and your position would no longer be held for you after a certain date. However, there is a no harm no foul rule: if you could not have returned at the end of 90 days anyhow, it will be hard to have a claim under the FMLA - which has a specific 90 day limit for protected leaves.

My office has considerable success with medical leave cases for employees, including a recent seven figure settlement in San Jose Federal Court and a $928,000 trial judgment. We work bay-area wide.

Please contact us soon if you would like to discuss in more detail.

Sincerely, Richard Vaznaugh
Law Office of Richard Vaznaugh
415-593-0076

posted by Richard J. Vaznaugh  |  May 10, 2013 12:38 PM [EST]