Thank you very much for your reply.
Assuming that you are on FMLA
leave or your condition qualifies as a disability under the Americans With Disabilities Act, your employer would be breaking the law by treating you any different that other similarly situated employees. However, this does not mean that an employer cannot lay you off while you are away from work--it simpyl means that if they lay you off, it needs to be out of a legitimate business necessity and they need to be able to show that it would have happened even if you had not taken leave.
If you are on FMLA protected leave, the employer actually has the burden of proving you would have been laid off anyway. McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792 However, if your entire unit has been closed down, it will not be hard for your employer to prove that this was the case.
With regard to being permitted to apply for another position, you must be afforded the same rights as other employees. Generally speaking, this does not mean that your employer must delay filling positions and wait until you have your surgery before you apply and they consider everyone all at once. Since other employees must apply by a certain deadline, your employer would generally be free to hold you to that same deadline; however, they cannot consider the fact you are still away from work as a factor in rejecting your application.
The only exception would be if your condition qualified as a disability under the ADA
and your disability prevented you from applying at the same time as everyone else. That being the case, your employer would be required to "reasonably accommodate" your disability, which may include permitting you to apply at a later point in time than other employees, provided that delaying the deadline would not cause the hospital to incur undue hardship.
So to summarize here, employers are required to treat employees on FMLA leave or employees with missing work due to an ADA disability the same as healthy, otherwise similarly situated employees. Unfortunately, though, this does not mean that an employee out on disability would be exempt from a layoff that would have happened anyway, and since the rest of your unit is being laid off, it seems clear that such employment action was inevitable regardless of whether you were missing work or not.
Generally speaking, an employer does not need to extend the application deadline for an employee out on disability, though they may not consider the employee's absence as a factor in choosing to accept or reject their application. If an employee has an ADA disability which prevents them from applying with everyone else, an employer may be required to extend the application deadline as a reasonable accommodation, provided doing so does not impose an undue hardship on the employer's operations.
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