Question:
Can my company lay me off after I have told them I will be out for surgery?

My company has just had layoffs and is about to go under. It is more than 50 people, but I have only been there 2 months, so I wouldn't qualify for the FMLA. Is that correct. What legal recourse do I have if they let me go prior to or immediately after my short-term disability? Do you know an attorney in Dallas you can recommend?    — Hope H. (posted on May 18, 2001)

May 18, 2001
If the company is about to go under, everyone may be layed off anyway! My former company was having similar problems in the middle of my WLS journey, so I quickly looked for a new job. I started my job on April 30 and will have surgery on June 21, less than two months after starting. My employer is not thrilled that I'm taking off, but understands that surgery can't be avoided (he doesn't know what it's for). My point is that you may not be fired for taking time off for surgery at your current job, but may be fired b/c the company is going under. If your state is an "at will" employment state, that means they can hire and fire at will with no reason and you probably will have no recourse. If you can, maybe look for another job prior to surgery. Maybe you could take a month on short-term disability at your current job and then start a new one. You could just call your employer and say you aren't coming back so you still get disability coverage. Good luck.
   — PT LawMom

May 18, 2001
I'm not a lawyer, so can't really advise you with respect to legal recourse. My answer comes from my experience in California as an HR manager. You do not qualify for FMLA. If the company has already established downsizing, which you say they have, I would suspect they will have a great defense for laying you off as well (even if you suspect they are doing it because of your surgery, it will be extremely difficult for you to prove). Not the news you wanted to hear, I'm sure! Good luck. - Kate -
   — kateseidel