My mother has worked for the same employer for over 25 years and is now eligible to retire (with benefits). She recently had to undergo major surgery and has now exceeded her allotted time off. Her employer sent notification that she will be terminated if she does not report back to work. Her surgeon is telling her she cannot go into work and doing so can cause irreversible and permanent damage. Her employer has received this in writing from her doctor but will not make any accommodations. She is reporting back to work because she fears losing her job and her health insurance benefits which she desperately needs right now. My mother has maintained an excellent rapport. Can they fire her at this time? If so she legally at risk of losing retirement benefits?
The short answer is that your mother can be fired if she has exhausted her leave. The federal Family and Medical Leave Act grants qualifying employees up to 12 weeks of unpaid leave to deal with their own medical conditions. An employer can require the employee to use up vacation and sick time as part of that leave. An employer also can use vacation, sick and personal days to extend the leave time, but is not required to do so. At the end of the leave period, if the employee does not return, then the employer may terminate. However, at that point another law might come into play. Under the NJ Law Against Discrimination, an employer should talk to the employee to see if she could return to work with a reasonable accommodation for her physical condition. I suggest that your mother invest in a consultation with an experienced employment lawyer to go over the details of her situation and provide guidance.