This may be jumping the gun a bit but I would like to have all my ducks in a row when I need them. I went to see my primary doctor yesterday to discuss a weight problem I have had for years. It was concluded that I am severly overweight. I have already had one knee surgery (I was back at work after 3 days because of my manager) and have started the process of surgery on the left knee. We talked about the possibility of the gastric bypass but will try other methods first. When my boss asked me how the doctors appt went, I told her about the avenue that we "may" have to go down and immediately she said "you wont have a job if you have surgery, we won't hold your position". I was a little taken a back. How can she tell me I wont have a job? This is about my health and how I can be a better employee. I want to feel better and stop taking medication for pain. Can they fire me for having surgery? Not only can I not raise three kids on unemployment but how will the surgery be paid for if they cancel my insurance? Thanks!

This may be jumping the gun a bit but I would like to have all my ducks in a row when I need them. I went to see my primary doctor yesterday to discuss a weight problem I have had for years. It was concluded that I am severly overweight. I have already had one knee surgery (I was back at work after 3 days because of my manager) and have started the process of surgery on the left knee. We talked about the possibility of the gastric bypass but will try other methods first. When my boss asked me how the doctors appt went, I told her about the avenue that we "may" have to go down and immediately she said "you wont have a job if you have surgery, we won't hold your position". I was a little taken a back. How can she tell me I wont have a job? This is about my health and how I can be a better employee. I want to feel better and stop taking medication for pain. Can they fire me for having surgery? Not only can I not raise three kids on unemployment but how will the surgery be paid for if they cancel my insurance? Thanks!
I maybe wrong but I doubt it. If your doctor states that you have to have it for your own health, and not just for cosmetic reasons (just to be skinnier),and you are at risk for being overweight,this may fall under family medical leave act (fmla). If you qualify for this, then your job may not fire you, as long as you do not miss over 12 weeks total for this. If you have surgery on your knee, and you miss 6 weeks, and then you have the gastric bypass, and you miss 7 weeks, you will go over the protected 12 weeks in a years time, and they could fire you. Just to start with, have you worked for this employer for a year or more? Have you worked at least 1250 hours in the last year? Does your employer have at least 50 employees within a 75 mile radius from your place of employment? These are basic requirments to even qualify for fmla leave. If you can not get fmla coverage, then yes they can fire you.

Actually, California has additional protections, I believe. One of our California experts will be along later. Hang on.

To the best of my knowledge the only additional protections in California with regards to the length of protected job time apply to pregnancy.

CA does have a more liberal definition of disabled (for ADA protections). This MIGHT mean needing to allow additional time off. I'm not sure if even in CA gastric bypass surgery would qualify you for disability protection though; Megan?

But for the record, let's try to get a few more facts here.

How long have you worked for this employer?
How many employees does the employer have within 75 miles of your location?
In the last 12 months, did you work at least 1,250 hours?
Have you missed any time during the last 12 months? If so, how much?

That will at least help us identify your FMLA status.

While FMLA would be the best bet (assuming you meet the qualifications; turbowray listed them previously).

The only other protection you would have would be a claim that they are discriminating against you due to disability. This would depend of the extent of your knee problems- if having knee surgery will make your knees 100% healthy, then you don't have any protection.

The gastric bypass is part and parcel of the knee issue- I'm sure one of the reasons your doctor is talking about it is to reduce the strain on your knees. If your knees make you disabled, then an unpaid leave to get the gastric bypass seems like a reasonable accomodation.

>>if having knee surgery will make your knees 100% healthy, then you don't have any protection<<

A couple of questions about that: 1) would that necessarily be true if she had grounds to claim they regarded her as disabled, and 2) I was under the impression that CA's version of the ADA was so broad that it encompassed any impairment of a major life activity...and in the unmitigated state, ignoring any improvements that mitigation may have provided? This later is obviously different than the ADA standard of a signficant impairment of a major life activity in the mitigated state.

The way it was once explained to me, my vision is corrected to 20/20 and therefore I have no visual disability in 49 of the 50 states per the ADA. But under CA's FEHA, I was told the standard was to consider that when I remove my glasses, since my vision is worse than 20/400 and I could be considered "blind", therefore under FEHA I would be considered disabled only in CA.

Of course, the phrase "only in CA" seems to apply to a lot of things. ;)

>>if having knee surgery will make your knees 100% healthy, then you don't have any protection<<

A couple of questions about that: 1) would that necessarily be true if she had grounds to claim they regarded her as disabled,

You can always make the "regarded as" claim, but if she is now running marathons, it is a tough case to prove. Your asking a jury to beleive that the reason that she was denied leave was because the company a)thought she was disabled because of her knees, and b) didn't like her because of that.

2) I was under the impression that CA's version of the ADA was so broad that it encompassed any impairment of a major life activity...and in the unmitigated state, ignoring any improvements that mitigation may have provided? This later is obviously different than the ADA standard of a signficant impairment of a major life activity in the mitigated state.

The way it was once explained to me, my vision is corrected to 20/20 and therefore I have no visual disability in 49 of the 50 states per the ADA. But under CA's FEHA, I was told the standard was to consider that when I remove my glasses, since my vision is worse than 20/400 and I could be considered "blind", therefore under FEHA I would be considered disabled only in CA.


True, but there is a difference between "treatment" and "cure." If you get lasak and you now see 20/20, you aren't disabled anymore. And a knee problem that is curable wouldn't be a permanent condition.


Of course, the phrase "only in CA" seems to apply to a lot of things. ;)

Oh, yes, we like to keep things interesting.

>>True, but there is a difference between "treatment" and "cure."<<

Okay, I see the distinction, and that makes sense. Thanks for clarifying that for me.

As a friend of mine used to say:

"I see," says the blind man. :)

>>True, but there is a difference between "treatment" and "cure."<<

Okay, I see the distinction, and that makes sense. Thanks for clarifying that for me.

As a friend of mine used to say:

"I see," says the blind man. :)

...to his deaf wife.

...to his deaf wife.
LOL!! Reminds me of the old movie with richard pryor and gene simmons (I think that is the name). Funny movie!