Do I have a case regarding my termination?

UPDATED: Oct 1, 2022

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Do I have a case regarding my termination?

I had knee surgery because of chronic pain in my left knee from an ACL rupture and a hole worn in my femur. Before surgery my employer agreed to find me some work around the office and training my work team with a new system, however after asking for work and signing a vacation slip I was told just yesterday that my benefits will end next week and I no longer have a position with the company. About 2 weeks ago, my job foreman asked if I would like to get a couple hours driving the work truck for him and I was happy to get any work I could do. Yet today I was told that the work I did was not authorized and I was terminated because of it. I have worked for this company for over a year and feel I have done absolutely nothing wrong to be treated this way.

Asked on May 23, 2018 under Employment Labor Law, Colorado


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Can you do the job you had been doing? If so, then this was wrongful termination: if you can still the core or important functions of your job, it is illegal to terminate you due to disability (e.g. the knee damage and surgery for it).
Or if you cannot do the job you had been doing right now, but you just need time to recover from surgery or do physical therapy, then if either or both of the following apply--
* You have enough paid time off (e.g. sick days or vacation days) to cover your absence; and/or
* Your company is large enough (at least 50 employees located within a 75-mile radius to be covered by FMLA, you worked there at least one year, and you worked at least 1,250 hours in the past 12 months, and you therefore can and do use unpaid FMLA (Family and Medical Leave Act) leave for your absence (you get up to 12 weeks unpaid)
--you could not be terminated. You may use PTO or FMLA leave for any necessary treatment and recovery.
So if you were fired despite being able to do your job or despite using PTO or FMLA for any absence, this would seem to be an illegal termination and you should contact an employment law attorney to explore your best options to enforce your rights.
However, if you cannot do your job anymore and need more time off than you have PTO & FMLA leave, you can be terminated; an employer does not need to retain someone who simply cannot do the job they are supposed to do.

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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