I have been working for my employer now for 2 years. In may 04 I was diagnosed with breast cancer and went out on short term disability, will surgeries and chemotherapy to follow I continued to be out on short term and was assured by my supervisor not to worry about my position. As of Oct 28 I was qualified to be on long term disability and based on the rest of my treatments was approved to be out until Feb 15, 2005. My long term disability claim was approved on Nov 15 and that same day I received a call from HR employee releations that they have replaced my position due to business neccecity and that when I am ready to come back they will set me up with a recruiter to hopefully find another position within the bank. The glitch is that if within 60 days of working with the recruiter I do not find something else then that is it I am out of a job. Can they legally do this? I know that she had mentioned the FMLA and the 12 week period but I was on disability not on FMLA. Any advise would help. By the way I am in NY state.

Yes, they can do this as long as they are treating you differently than others who are out for similar periods of time. If they do treat you differently, it can be seen as discriminatory. It sounds as if they have a standard policy of doing this, as most larger employers do. Let me know if you have any other questions.

Well here is an example. I just went on long term disability and they notified me that day that I no longer had a position. There have been two others in our area that went out on leave one due to maternity complications which left her out for at least 8 mts and another to have surgery due to carpel tunnel syndrome who was out for 5mts and they are both still employed there. Also I have currently found out that the letter they sent me stated that they are replacing my position due to business reasons when in fact they took my position and opened it up for a higher position above mine which in essence is not replacing my position at all. Another question I had is I was wanting to write the owner of the company about my situation, do you think that this is a good idea? I have been an exceptioinal employee while there and am the only one in my area that knows the software that we are currently using through an aquisition that happened last year so for them to find someone that could replace my qualifications will be tough in our area.

Yes, that is a wonderful idea. Perhaps you can talk with him about a timeline for your return, whether you can work part-time at first, etc. The reason is that decision makers are often more willing to accept a situation such as a long-term leave of absence if they know the extent of the leave, the costs, etc. Also, most people find it difficult to turn away from someone who is asking for assistance, especially if the requestor is being cordial.

Let me know how it goes and if you have any other questions.