Can My Boss Fire Me For Having Surgery?

You’ve just informed your boss that your doctor has recommended surgery for you and you will need a few weeks or months off to recuperate.  Your boss says they can’t lose you for that amount of time and will fire you in order to hire someone else who can work.  Doesn’t seem fair, does it?  But the question is:  Is it legal for your boss to fire you for having a medical procedure requiring time away from work? 

Well, depending on your situation, state, employer, and employee status, that can be a tricky question.

The issue of needing time away from work for a health or medical issue falls under the federal Family Medical Leave Act, signed in 1993, also known as the FMLA or a state equivalent.  The health portion of this law allows you to take up to 12 weeks per year of job-protected unpaid leave from work to handle a serious health issue, whether it is yours or that of your spouse, child or parent.  (Additional qualifying reasons for FMLA leave that are not addressed in this article are military leave, pregnancy, adoption or foster care.)

What kind of illness is covered by the FMLA?  The illness or injury leaves you impaired or with a physical or mental condition that requires hospitalization, hospice, or a residential medical care facility.  Illnesses that require treatment more than twice by a health care physician can also qualify.  If you are not able to go to school, work, or perform other daily activities such as grooming, driving, or sleeping, these may also qualify.  If the illness is permanent, long-term or is the result of a treatment that was not effective, you may also qualify for FMLA leave under the law.  Eligibility for coverage under the FMLA is based upon a number of factors, including how long you have been employed with your employer, the number of employees and other criteria.

However, your employer and you as an employee must meet certain criteria in order for FMLA leave to apply.  There are some exceptions to these criteria depending on your situation and you should always consult a reputable employment attorney to find out if these criteria apply to you and your employer.

Your employer must:

• Have 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year (unless your employer is a public agency like a state or local government or school, or you are a federal employee)
• Be a private company engaging in commerce

You, the employee, must:

• Be employed by a qualifying employer
• Have worked for your employer for at least one year (doesn’t have to be consecutive)
• Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins
• Work at a worksite within 75 miles of the location where your employer employs 50 or more people

If you and your employer qualify under FMLA, your FMLA leave will not be paid leave unless you have available sick time, paid time off, vacation time or other benefits through your employer.  Sometimes your employer requires you to exhaust those time-off benefits first before beginning any FMLA leave time.  Your employer is not required to continue paying your salary or wages during your FMLA leave.  However, your employer is required to maintain your insurance should you take part in your employer-sponsored healthcare coverage.

Your qualifying employer is required to prominently display a poster explaining FMLA and how to file a complaint where employees and applicants can see it.  It must be easily read and fully legible and the employer is required to post is even if no employees are eligible for FMLA leave.  If a significant portion of the employer’s workforce does not speak English, the employer is required to post a version in the language the employees can read.

Your qualifying employer must also provide you notice as to your eligibility for FMLA coverage and your rights and responsibilities.  If you take leave for your surgery or other qualifying reason, your employer must notify you which part of your leave is covered under FMLA and how taking it will reduce the total amount to which you are entitled under FMLA.

A general notice regarding FMLA must also be included in your employee handbook or distributed at hiring if there is not a written employee handbook.  In either case, the employer is permitted to distribute it electronically and is also permitted to simply duplicate the poster already on display.

If you tell your boss you need surgery, and all the FMLA criteria is met, your employer has five business days (unless there are extenuating circumstances) to notify you of your eligibility to take FMLA leave.  If the notice states you are ineligible, it must state at least one reason why.

If the state you work in has laws that are more favorable to you as the employee, the FMLA does not supersede those and your employer has to comply with the state laws that are more beneficial to you.

However, if you and/or your employer do not meet the above criteria, your employer may have the power to fire you legally for absenteeism if you must have surgery that takes you away from work for longer than your employer will permit.  You can find more information about FMLA from the Department of Labor’s website on the same topic.

You have the right to work in an environment free of discrimination based on your serious health condition or that of a spouse, parent or child.  If you are concerned about your rights under FMLA or your employer’s practices related to the FMLA, Henrichsen Siegel can help.  We represent clients in Washington, DC, Maryland, Virginia, Florida and Georgia.

Protect your rights.