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

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 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).


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