QUESTION

What are my chances of having a case for wrongful termination, that could actually be awarded?

Asked on Oct 25th, 2012 on Wrongful Termination - Pennsylvania
More details to this question:
I was fired for the reason given as 4 months off for rehab on shoulder surgery was to long to wait for me to come back, and the fact that she thought the surgery would only weaken the shoulder and I would be unable to perform my daily duties, I would in turn become a liability to her. So after long consideration the only recourse was to fire me but she would allow me to collect unemployment. Maybe I could get the doctor to say after 4 weeks that I was able to answer phones or some other type of work not requiring the use of the shoulder.
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1 ANSWER

Your post raises a couple of different issues.  First, under the Americans with Disabilities Act and PA law, your job would only be protected if you could have performed all of the essential functions of your position either with or without reasonable accommodation for your shoulder injury.  You did  not identify what your specific job was, but one or more of the essential functions of your job required you to perform work that required the use of your shoulder and there was no accommodation that the employer could have provided to you that would have enabled you to perform those tasks, then the employer may terminate your employment under those circumstances.   And, since it seems that you were out of work in rehab for 16 weeks, then you would also have lost any Family Medical Leave Protection you may have been entitled to after the first 12 weeks of your rehab. Whether retaining your job and allowing you to remain out on unpaid leave for another 4-6 weeks post-FMLA would be considered to be reasonable accommodation would be another question.  These types of cases are extraordinarily fact-sensitive.  I would be happy to discuss the matter with you in more detail, if you would like.  Michael J. Davey, Esquire Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C. 344 West Front Street Media, PA 19063 (610) 565-3700  mdavey@eckellsparks.com
Answered on Oct 26th, 2012 at 8:12 AM

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