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Fired for surgery?? New York

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  • Fired for surgery?? New York

    So i had a flu shot in 2014. Long story short it turned out very bad and I needed surgery in that arm for it February 2015 and was out of work 9 days. So today I had a follow up from a MRI due to still having pain and a second surgery is needed. Post op time approx 12-16 weeks. I told my employer of 3 years about new surgery and her response was very stand offish. So I asked can I be fired for being out so long and she did not say yes, but did not say no either. What the heck I have no choice. I got a bad flu shot (proven from the vaccine court) now I need surgeries and I may lose my job for it??? We have 25 employees, I am in NY. Any suggestions?

  • #2
    Because you have fewer than 25 employees, FMLA does not apply, and even if it did, the maximum protected time you would be entitled to is 12 weeks. NY has no additional leave time applicable in this situation.

    That being the case, you *may* legally be fired for an extended absence, even if it is due to medical reasons. That does not mean you *will* be, just that if you are, it's legal.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      Originally posted by cbg View Post
      Because you have fewer than 25 employees, FMLA does not apply, and even if it did, the maximum protected time you would be entitled to is 12 weeks. NY has no additional leave time applicable in this situation.

      That being the case, you *may* legally be fired for an extended absence, even if it is due to medical reasons. That does not mean you *will* be, just that if you are, it's legal.
      Just to clarify, it seems employer has 25 employees. However, for FMLA to apply location of employer (where employee works) needs 50 or more employees within a 75 mile radius. Agree that even if FMLA applied, OP would only be entitled to a maximum of 12 weeks of job protected leave. (Sometimes some additional time off might be a reasonable accommodation under the ADA.)

      It "seems" FMLA does not apply in OP's case (based on what is posted). Therefore, OP "may be" legally fired for an absence/extended absence due to medical condition noted.
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        Originally posted by Betty3 View Post
        Just to clarify, it seems employer has 25 employees. However, for FMLA to apply location of employer (where employee works) needs 50 or more employees within a 75 mile radius. Agree that even if FMLA applied, OP would only be entitled to a maximum of 12 weeks of job protected leave. (Sometimes some additional time off might be a reasonable accommodation under the ADA.)

        It "seems" FMLA does not apply in OP's case (based on what is posted). Therefore, OP "may be" legally fired for an absence/extended absence due to medical condition noted.
        One more clarification, if you were out in February 2015 for 9 days and the employer was covered under FMLA, that 9 days might count against your 12 weeks allowed depending on if the employer used a rolling 12 month calendar or resets FML a set month each year.

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        • #5
          Originally posted by HRinMA View Post
          One more clarification, if you were out in February 2015 for 9 days and the employer was covered under FMLA, that 9 days might count against your 12 weeks allowed depending on if the employer used a rolling 12 month calendar or resets FML a set month each year.
          That's very true -- 12 weeks total each calendar year used by employer. It seems FMLA "probably" doesn't apply in OP's case though.
          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

          Comment

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