Can my employer fire me for being out for 5 months due to surgery?

UPDATED: Oct 1, 2022

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Can my employer fire me for being out for 5 months due to surgery?

I was let go because they predicted that I would be out for over 6 months, when in fact the doctor had already released me after just 5 months. I am 69 years old and feel like they just didn’t want me back at my age. I worked a total of 27 years for them.

Asked on December 2, 2018 under Employment Labor Law, New York


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Unless you either had 5 months of paid time off which you used for the absence and/or you were covered by FMLA, they could terminate your employment. The law does not mandate that employers retain workers who miss work due to illness unless they can cover their 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 and PTO allowed, they could terminate you for your absence.

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