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Can I Be Fired For Having Surgery?

Written By: Mo Eldessouky Updated On: June 7, 2024 | Read Time: 6 Minutes

Many patients who undergo surgery can come out of it with more pain than when they went in. If you cannot return to work immediately after surgery, you may be wondering what will happen to your job.

You may need to take some time off work to fully recover from the surgery. And, even when you’re fully recovered, you may be unable to function properly in your job without some accommodation.

What happens if your employer decides the time you need for leave would be too long for them? Can you be fired after returning from surgery simply because you will need some accommodation?

Can an Employer Fire You for Having Surgery?

can an employer fire you for having surgery

In most cases, no. California and federal law provides employees with several legal rights in these instances. Your employer is prohibited from firing you after surgery if that act breaches any of the statutes that may apply to you.

Need Legal Help? Let’s talk. or, give us a ring at 714-409-8991.

IMPORTANT: If you are being let go after having surgery, your employment may have been unlawfully terminated. Contact us at Eldessouky Law if you suspect you were wrongfully let go. Tell our lawyers your side of the story and find out how we can help. Our initial consultations are free and confidential.

What is the general law on employment in California?

The general principle that applies to California employees is the ‘at-will’ employment principle. This principle means that employment only continues at the will of both employee and employer.

According to California’s Labor Code, an employee can leave their job at any time and employers are likewise free to fire employees for any lawful reason, or no reason at all.

This principle operates as a general presumption in California. This means your employment will be considered to be at-will, unless there is a specific contractual relationship with your employer that limits their ability to fire you (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1386).

The implication of the principle is, even though many employees think their job is protected unless they do a bad job or mess up in some way, that’s usually not the case. Your employer may fire you at any time and for no reason.

Despite the principle, employers are prohibited, under California and federal law, from terminating employees for unlawful reasons. Examples of unlawful reasons include firing an employee:

  • Because of their political beliefs or affiliations
  • Because they requested time off that they are legally entitled to take
  • Because of their gender, disability, sexual orientation, religion, race or other protected characteristic

If you have been injured and had to undergo a surgery, you may be protected under some of these laws. The protection you can enjoy under the Family and Medical Leave Act (FMLA), as well as California’s Family Rights Act (CFRA) will be discussed here. The Americans with Disabilities Act and California’s Fair Employment and Housing Act will also be discussed.

Dealing with an Employment Dispute?

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or, give us a ring at 714-409-8991.

How is my job protected under the FMLA and CFRA?

The FMLA is a federal law that provides employees with 12 weeks of unpaid leave per year to take care of family or medical issues. The CFRA is California’s equivalent of the federal law.

These laws do not apply to all employers though. For an employer to qualify for FMLA policies, the following must apply:

  • The company must have at least 50 employees
  • The employee must have worked for at least 1,250 hours in that year
  • The employee must live within 75 miles of the workplace

The same conditions apply under CFRA. In addition, under the CFRA, if an employer requires you to use vacation time, they must pay you for that part of your vacation time.

While leave under both FMLA and CFRA are generally unpaid, employees can receive short-term disability benefits during the period. Contact your lawyer to see if you qualify for California’s Short-Term Disability Insurance (SDI) scheme.

While on leave, both laws prohibit employers from terminating employees. When the leave is over, your employer must give you back your previous job or one that is substantially identical.

Reach out to us immediately if you came back from FMLA or CFRA leave and found your job was given out. You have a right to the exact same job you left.

How can FEHA and the ADA protect my job?

Even after you have exhausted your FMLA/CFRA leave, you can still be protected under the ADA and FEHA so long as you can still perform the essential functions of your job.

The ADA protects the right of all employees to fair employment opportunities. It prohibits employers from firing employees who have suffered or are suffering from a physical or mental disability or a recognized medical condition.

The law applies to employers with 15 or more employees and requires that such employers make reasonable accommodations to help disabled employees continue to work. Employers must do this as long as it does not cause them ‘undue hardship’.

This means that employers should consider making some allowance for injured or disabled employees, such as providing a bigger screen or allowing time for leave. The accommodation would cause undue hardship if it results in significant economic loss to the business.

California’s FEHA also prohibits employers from firing employees with a disability. It however has a much lower threshold, as it applies to employers with 5 or more employees.

To obtain protection under FEHA and the ADA though, you need to answer the following questions:

  • Do you have a disability under the law? ADA and FEHA generally exist to protect employees that have a covered disability. This may be mental, physical or may stem from a medical condition.
  • Does it qualify as a physical disability? To qualify as physical disability under FEHA, there must be a “physiological” condition or anatomical loss that affects one or more body systems, including musculoskeletal systems.
  • Does it limit major life activities? Working, speaking, breathing and walking are all major life activities under FEHA and California Government Code §12926.1(c). The disability will be considered to limit a major life activity under FEHA if it “makes the achievement of the major life activity difficult”.

In Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 220, an employee had a wrist injury that require fusion surgery. The doctor ordered that he should do no heavy lifting, pulling or pushing with that hand. The court held that the restrictions were a disability for a meat cutter under FEHA.

If all of these apply to you, your employer cannot fire you after an injury without starting the interactive process to try and find you a reasonable accommodation.

What if my employer fired me after my surgery?

Your options would depend on whether your employer followed the dictates of the law in taking the action. Since FEHA and the CFRA, along with the alternative federal laws provide a strong network of rights for disabled employees, your employer must be within these laws for your termination to be legal. For instance, your employer may be allowed to fire you when:

  • The decision is unavoidable due to business necessity and performance issues. For instance, if an accommodation has been made for you but you still fail to do your job properly. Your employer is not obligated to keep you working while their business suffers. This is highly subjective though and you should immediately contact a wrongful termination lawyer for a consultation.
  • Your employer has discharged their duties under ADA and FEHA but you are unable to perform the essential functions of your job, even with reasonable accommodation.
  • You didn’t declare you were taking unpaid leave under FMLA or CFRA or you didn’t return from leave when you were supposed to.

Despite this, there are many more instances when your employer is not allowed to fire you. If you have done all that you should and taken the appropriate permissions, you may not be discharged after your surgery.

  • Your employer cannot fire you while still on FMLA or CFRA leave
  • They cannot fire you for requesting this leave either. You have a right to unpaid leave and they should see that you get it.
  • Your employer cannot give out your job while you are on FMLA or CFRA leave.
  • Even if you did not specifically request leave under those laws, once you have informed your employer about your condition, they have an obligation to inquire as to what accommodations you may need.
  • They cannot fire you for requesting accommodation as this is your right under both ADA and FEHA

Next Steps: Talk to a qualified lawyer

If your employer has relieved you of your duties and fired you in spite of your rights under the law, talk to our wrongful termination attorneys today. The law has provided extensive rights to protect you from job loss. Our part is to help ensure that those rights are enforced in your favor. Contact us on 714-409-8991 to set up a free and confidential case review today.

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