Can my employer fire me for being out for 4 months for foot surgery and open heart surgery?

UPDATED: Sep 30, 2022

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Can my employer fire me for being out for 4 months for foot surgery and open heart surgery?

I was let go because they predicted that I would be out for over 6 months, when in fact the doctor released me at 5 months but they had already let me go after 4 months and 1 week. I am 72 years old and feel like they just didn’t want me back at my age. I worked a total of 24 years for them.

Asked on June 13, 2017 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Unless you either had 4 months of paid time off which you used for the absence; or your company was covered by FMLA (at least 50 employees within a 75-mile radius), you were eligible for FMLA (worked there at least a year; worked 1,250 or more hours in the last year), you used FMLA for 12 weeks *and* you also had and used enough PTO to cover the 4th month out, yes, they could let you go. The law does not make employers retain workers who miss work, even for surgery, unless they can cover the full absence by FMLA (which is only up to 12 weeks/3 months) and/or paid time off or by a combination of the two. If you missed more work than your FMLA (if, as above, you could sue it) and PTO allowed, they could terminate you for your absence(s).

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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