While out on disability, how long can employer hold my job before they can fill position? 7 Answers as of December 06, 2012

Not sure how long my position must be held before they can fill it.

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Lisa B. Golan, Attorney at Law | Lisa B. Golan
It depends. If you qualify for Family and Medical Leave Act (FMLA) leave, you are entitled to take up to 12 weeks of leave every 12 months for a serious health condition, and to be reinstated to the same or an equivalent position upon your return from leave. To be eligible for this type of leave, you must have worked for your employer for at least a year (not necessarily all at one time), have worked 1250 hours in the past 12 months, and your employer must employ 50 employees within a 75 mile radius of your place of work (or from the headquarters into which you report if you work from home.) If your condition meets the definition of disability under the Americans with Disabilities Act (ADA), you may be entitled to more than 12 weeks of medical leave if your request for leave is reasonable and your employer cannot show that your leave presents an "undue hardship" to its business or operations. Whether leave is "reasonable" or presents an "undue hardship" will depend upon the length of leave requested, whether your employer grants leave of that length for other reasons, and the nature of your position. So, for example, if you work in a position with high turn-over and minimal training requirements, a lengthy period of leave is more likely to be found to be "reasonable."
Answer Applies to: Georgia
Replied: 12/6/2012
A. Dawn Hayes & Assoc. P.A.
A. Dawn Hayes & Assoc. P.A. | A. Dawn Hayes
The length of time varies depending on the number of employees who work for your employer, the employer's policies and how long you have worked for the employer.
Answer Applies to: Florida
Replied: 12/5/2012
Olson Law Firm | Edward M Olson
If you are out on a disability, they are not obligated to hold the position at all.
Answer Applies to: Michigan
Replied: 11/30/2012
Steven Miller | Steven Miller
It depends on whether the disability is work related or not. If work related usually 1 year. If not work related, if you qualify under family medical leave act, then you can take up to 12 weeks. To qualify, there has to be a minimum of 50 employees, you have worked there for a year, and have been full time. Federal law and state law can be a little different, but you can use this information a general guidelines. If you work for a small business (e.g. less than 50) they don't have to keep your job available.
Answer Applies to: California
Replied: 11/30/2012
Nancy Wallace, Attorney at Law
Nancy Wallace, Attorney at Law | Nancy Wallace
They can fill your position immediately, depending on circumstances. Did you label your time off as Family Medical Leave act time? This forces larger employers to keep the position open...for "up to" 12 few weeks. There is a Urban Myth that you can't be fired or laid off if home sick on Disability Pay or Leave...and that's just a Myth. STRATEGY: 1. confirm IN writing with Human Resources at your company that this time off is a FMLA leave and 2. have the doctor write a 'Status Report' saying Doc "Anticipate" return to full duty in 3-4 weeks (or sooner), so the Employer is not left hanging with no clue when you'll return to full duty.
Answer Applies to: California
Replied: 11/30/2012
    WILLIAM L SANDERS, ATTORNEY AT LAW | William L. Sanders
    I do not know what type of disability you mean when you say "out on disability" so I am unable to give you an answer. Generally the answer would be ok to replace you immediately, as soon as you go out on disability. Most employers can not operate with an employee being absent for a long period of time. If they could, your position would have been eliminated as not needed. On some types of leave, such as FMLA, you get your job back, only if the employer has an opening. There are not a lot of rights that go with disability leave.
    Answer Applies to: Georgia
    Replied: 11/29/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    During the period of disability it is anticipated that your job will be filled, otherwise there would've been no reason for you to be employed as clearly your employer required your services, and in your absence the services of someone else. This means that most probably your job position is going to be filled and therefore there is a possibility the same position will not be available upon your return.
    Answer Applies to: Michigan
    Replied: 11/29/2012
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