extended leave of absence

What is the name of your state? florida
Took medical leave of absence for broken bone in foot which required surgery. 12 weeks passed but my surgeon is not allowing me to go back to work for at least another 2 months and prescribed therapy ( i have scare tissues and loss of sensations in toes as well as no flexibility in big toe). I am a massage therapist and need to stand and push on my foot all day to do my job. The hotel i worked for has informed me i will have to RESIGN and reapply for a job when i am able to work. Is this legal? I have received short term disability and i am in the process of applying for long term to cover the next 2 months but i do not want to lose my job. Do i have any options? Please help!!!

Yes, this is legal. The Family Medical Leave Act guarantees you job protection for 12 weeks, but you've had that. A broken foot does not qualify under the ADA, so you have no additional protection there. As long as you have been granted the 12 weeks leave, if you are still unable to return to work it is legal for them to request your resignation. It is also legal for them to fire you.

thanks for your answer. In which case would the ADA proctect me? I did not have a broken foot but surgery to remove a fractured bone in the foot which is leaving partially disabled at this point as i am unable to stand for long period of time, i have a loss of sensations in my toes and pain. I am a massage therapist and i need to stand and push on my feet all day. Thanks again for your input

It is extremely unlikely that a temporary disability such as you describe will qualify under the ADA.

However, even if it did, the ADA does NOT consider open-ended leaves to be a reasonable accomodation. According to my labor attorney, an extended leave of no more than six weeks, after which the employee is able to return to FULL duty, MIGHT be a reasonable accomodation. However, if you are going to need a minimum of two months and possibly not even be able to return then, the ADA is not going to help you. Even under the ADA, you have to be able to perform the essential duties of your position.

thanks again for your help. It is great to get the advise of people with more experience and knowledges of the law. Is my last resource to apply for long term disability? I am however scare because i have UNUM provident and they have been in the news lately for abusive denial of claims. I have had the short term and long term disability insurance for almost 2 years now. They have been good at paying for the 3 months of short term but now we are talking long term and it is a different thing.

If your STD is about to run out then by all means apply for LTD. My employees have had Unum for the last three years and I've never once had an employee's claim declined. Be aware though, that being on either STD or LTD WILL NOT save your job. It is entirely legal for them to terminate you, or request your resignation, while you are on disability as long as the FMLA time has run out. It will not affect your disability benefits, but I cannot think of ANY way you can force them to keep you employed. If they are offering to let you reapply when you are able to return to work, that is MORE than the law requires them to do.

thank you again, you have brightened my day with your wise and knowledgeable advise. I am glad to hear good things about UNUM and it gives me a ray of hope in all the pain i am in! THanks again. By the way, last question! If i resigned instead of them firing me for not being able to go back to work, in that case i will not be able to get unemployment, correct? When would the unemployemnt quick in? after the end of the pay for LTD?

I don't know Florida unemployment law specifically. However, in most cases you will not be eligible for unemployment unless you are able to work and available for work. It will be extremely case specific whether a "resignation" under the current circumstances will exclude you from UI - you'd have to get a judgement from your local unemployment office for that. State laws vary and while I have had employees in Florida as recently as 2000, I've never had that situation come up. But assuming that you are eligible, it will not kick in until you are released to work and are able to begin a job search.