Question:
Can I Be Fired For Taking Time Off For Surgery? (Not FMLA Eligible)

My boss came to me and said she was concerned about me not being able to return to work after 3 weeks of being out. She said she had to look at the best interest for the department and if I was out for more than 3 weeks she would have to find someone else. I have only been here for 8 months, so FMLA does not cover me. CAN SHE DO THAT? (I am having an open RNY June 11th). Thanks.    — TIFFANY R. (posted on March 21, 2003)

March 21, 2003
Find out if your state is an "employment at will" state. Missouri is so it means that your employer can let you go for "no reason" or you can quit for the same. If you live in a "employment at will" state then Yes she can. Probably the best is to try an reason with her if you have a good relationship. Good Luck!!!
   — Barbara S.

March 21, 2003
Find out if your state is an "employment at will" state. Missouri is so it means that your employer can let you go for "no reason" or you can quit for the same. If you live in a "employment at will" state then Yes she can. Probably the best is to try an reason with her if you have a good relationship. IF you received a handbook, check it to see if it may give you some clues...Good Luck!!!
   — Barbara S.

March 21, 2003
Most likely depends on who you are employed by. Where I work .. they cannot and would not even try such a thing. They may show dismay about my leave .. but cannot deny it to me if I file paperwork showing Dr stating my leave is medically necessary. And once a leave is granted based on Drs statement .. you cannot return to work anyhow without his approval. Without it the company would be leaving themselves wide open for problems. Your company should have some sort of handbook stating such policies. And if all else fails. Contact an attorney or paralegal for answers. Sorry I cannot be more help. Good luck to you.
   — Sarah H.

March 21, 2003
If your surgery is in June, that would put you at about 11 months of employment. FMLA kicks in at 12 months. So, it's possible (not knowing your hire date) that you would qualify for FMLA at that time.
   — Sherry B.

March 21, 2003
Go to your Human Resources Department and speak to the benefits manager immediately. Threatening you with the loss of your job, especially when you are having surgery to correct a medical condition, could be in conflict with your rights under the ADA (Americans with Disabilities Act). I work in Human Resources as the benefits coordinator for an insurance company and we do not terminate anyone for medical, FMLA or not. If you would like more information on how to handle this, email me at [email protected].
   — Anna B.

March 21, 2003
I had the same situation that you have described. I had been with my company for six months and three days before my surgery when I was "let go". I live in WA which is an "employment at will" state as was mentioned earlier so, unfortunately, there really wasn't a whole lot that I could do. I did consult with an attorney and he agreed that there was nothing I could do. When I found out that I was having surgery I told my immediate supervisor, who also happened to be the human resources manager, and she told me that she would be using FMLA for me even though I hadn't been with the company a full year. Needless to say, the President of the company thought differently and he was the one who told me I no longer had a job. I'm sorry this doesn't really answer your question, but I wanted you to see that it can happen and I hope you are able to take steps before your surgery to see that you don't lose your job as well. If they are threatening you in this way I would seek some type of legal counsel now who can accurately answer your questions regarding your state's laws so that in the event that you do lose your job and you're not covered by the FMLA you'll already have a start on what type of action you need to take. Good luck-I really hope things work out for you.
   — Nikki L.

March 21, 2003
Tiffany, I had an open RYN and was back to work in two weeks feeling just fine. I was absolutely amazed. As long as your job is not strenuous and rather a desk type job, you might be just fine back to work in three weeks.
   — Michael K.

March 21, 2003
Maybe if this job is really important you could postpone surgery until fmla kicks in. I know I was not eligible for fmla because I am part time, work only 1000 hours a year, so I made sure to schedule it during a time that would not inconvenience my employer more than necessary. I relly like my job and didn't want to lose it, however if my boss had said I couldn't have the time off I would have gone thru channels of human resources etc. and I would have had the surgery even if I would have been fired. If it had been a matter oof arranging to have surgery a few months later I would have done that.
   — **willow**

March 21, 2003
You may want to postpone your surgery if you really care about keeping this job, If you do not want to wait one other thing that I would suggest for you to check is short term disability. My Company offers it at no additional charge to me and I was eligible to take it after 6 months of employment. Check with your human resource department. My Company considered short term disability totally different from fmla.
   — Cathy B.

March 21, 2003
there's one thing i forgot to put into the scenerio, i have postponed my surgery for her because another co-worker is out on maternity leave. it just seems that she would work with me on this. and i am paying for short term disability, not sure if this insures my job.? thank ya'll a million.
   — TIFFANY R.

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