Can my employer lay me off because I have a knee replaced?

UPDATED: Oct 1, 2022

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Can my employer lay me off because I have a knee replaced?

I’m a 73 year old disabled veteran, 50 via VA, I have been working as a maintenance man/Manager for the same company for the past 6 years. Last May the condo hired a management company, they kept all the former employees on staff but over the time they have fired 3 employees. My problem is that I need a knee replaced, my supervisor has informed me that since he will need someone to fill in for me that they are hiring another person to replace me, and once I’am ready to return to work I will no longer have my job, but I could be considered for work with this company if one is open. Mainly

they are telling me since I need to have surgery I will no longer have my job. They will no doubt replace me with a younger person. Is this legal?

Asked on March 20, 2018 under Employment Labor Law, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You can be fired or terminated for missing work, even for a medical reason, unless:
1) You had accrued and use sufficient Paid Time Off (PTO) as to cover the absence; and/or
2) Your employer is covered by FMLA (has at least 50 employees located within a 75-mile radius), you are eligible for FMLA (have worked at least 1 year there; have worked at least 1,250 hours in the past 12 months), and you use FMLA unpaid leave for the absence (you get up to 12 weeks).
If you do use PTO or FMLA, they have to restore your job when you come back--if they don't, contact the state or federal department of labor, or speak with a private employment law attorney about suing.
But if you miss work without covering *all* absences by PTO or FMLA, they may terminate or replace you. The law does not make employers keep employees who miss work without using PTO or FMLA.

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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