Return to work after surgery

UPDATED: Oct 1, 2022

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Return to work after surgery

I had a major surgery with 6 to 8 weeks for recovery. At 3 weeks my boss text me several times asking get me to come back to work early. When I said my doctor wouldn’t release me yet she told me she

didn’t need a doctor’s note for return and said she was putting me on the schedule the next Monday. Can I sue them sense I still hurt 4 months later because I came back to soon. Can I sue them?

Asked on November 9, 2017 under Employment Labor Law, Wisconsin


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, you can't sue them because you did in fact come back--that means that coming back, and the consequences thereof, were your choice. Had you not returned and had they terminated you illegally--such as if you were still out on FMLA leave (see below)--you would have had a claim for wrongful termination. But agreeing to come back means that if you injured yourself by returning to work too soon, that is your responsibility: you chose to come back rather than stay out, see what happened, and then take appropriate legal action.
Note that if you were out on FMLA leave (such as if the employer has less than 50 employees and so is not covered by FMLA), you had no right to stay out of work once you used up any PTO you had, so you could have been legally fired for not coming back after 3 weeks if you were using FMLA or PTO for the absence. You can't miss work, even for recovery or surgery, without using FMLA or PTO. So it may have been the right choice to come back.

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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