Technically, it’s possible to get fired after having a spine surgery or another surgical procedure, since California is an at-will employment state. Under the at-will employment system, employers can fire a worker with or without notice, even if their work performance has been satisfactory. However, there are restrictions that prevent termination and other negative employment decisions that are based in discrimination. Furthermore, employers cannot fire an injured employee for exercising employment rights, like asking for medical leave and reasonable disability accommodations. That would be a form of retaliation, which is illegal under California law.
Were you dismissed from your job after having surgery or coming back from medical leave? Do you have reason to suspect that you were terminated because of your medical condition? It’s possible that your employer committed a legal violation under state and federal anti-discrimination laws. Even more important, you may have the right to file a labor law violation claim or lawsuit against your employer. The workplace discrimination lawyers of California Labor Law Employment Attorneys Group can help you take legal action and obtain compensation for your monetary losses. We are happy to offer you a free consultation, so please reach out to us at your earliest convenience.
Did You have Spine Surgery after a Work Accident?
A spinal procedure may be needed if you were hurt in an accident at work, whether you were at the job site or somewhere else, but still performing duties that are related to your employment. If the surgery was needed to recover from a work-related injury, you are probably receiving workers’ compensation benefits like medical expenses and replacement wages. You may also file for WC benefits if you developed a repetitive use injury, meaning that repetitive action or motions resulted in long-term damage to one or more parts of your body.
Workers’ compensation is available to anyone who was injured on the job, so you do not have to prove negligence by someone else in order to file a claim. So, just the fact that you were injured at your workplace or while doing something on behalf of the employer is generally enough to qualify you for workers’ comp.
Your specific injuries and their impact on your ability to resume your job duties are the most important issues in terms of a workers’ compensation claim. If it turns out that your injuries are severe enough, you may be eligible to receive permanent disability benefits. Alternatively, you may be unable to resume your job duties, but you can be trained for a different type of work. In that case, you can apply for retraining benefits, which will provide you with money towards classes, certifications, and other training-related expenses.
Unfortunately, some employees run into problems when they apply for workers’ comp or need to take extended leave for a major medical procedure. Some employers may try to deny disability payments or accommodations that the worker needs after having spine surgery. These are acts of discrimination and retaliation, and workers have the right to seek protection from wrongful termination based on a medical condition.
Does Workers’ Comp Pay for Spine Surgery?
Yes, if you sustain an injury that’s related to your job and the doctor determines you need spine surgery, the procedure will be paid for by workers’ compensation. If you experience enough recovery to where you can resume your job duties, you will receive temporary disability payments until you can come back to work. Temporary disability (TD) is normally calculated as two-thirds of whatever you earn as gross wages in a typical work week. If the doctor determines that you cannot return to work, you may have the right to seek permanent disability payments
Aside from WC, you may qualify to receive what is known as short-term disability. This is a program under the State of California that is similar to Social Security Disability Insurance. The program is paid for by payroll deductions, so you can apply for these benefits as long as:
- You have certification from a doctor to show that you are temporarily unable to work because of an injury related to your employment.
- You must show earnings of at least $300 during the base period, which is a period of 12 months prior to the last calendar quarter before you filed an SDI claim.
You can receive short term disability for up to 1 year (52 weeks) at a rate of 70 to 90% of your average weekly pay. If you would like to learn more about the SDI program offered by the State of California, don’t hesitate to give us a call.
Can My Employer Fire Me While I am Recovering from Surgery?
There are cases where an employer has the right to fire someone, even if they are recovering from a serious medical issue. However, an employer cannot just fire someone because they don’t want to hold a job open for someone that’s going to be out of work for a while. Or, the employer would rather hire someone new, probably for a lower rate, instead of making accommodations for a worker that’s recently had back or spine surgery. Employers can also retaliate against workers that assert their right to take medical leave under the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA).
The FMLA is a federal statute that provides up to 12 weeks of job-protected leave every 12 months for qualifying employees. FMLA protections apply if your employer has 50 or more employees within a radius of 75 miles. To be eligible for this time, you will need to have worked at least 1,250 hours for the same employer within the past 12 months. Workers can also take time off under the FMLA to care for a sick family member or after the birth of adoption of a child.
The California Family Rights Act is another law that provides certain workers with up to 12 weeks of leave within a 12-month period. CFRA protections apply to employers with 5 or more workers, and only to employees that have worked at least 1,250 hours within the past year.
Employment Protections by the Americans with Disabilities Act
You always hope that surgery will restore you to the condition you were in prior to an injury, or at least allow for enough progress to get back to work. But even after the most advanced treatments, you may find that your condition has resulted in permanent or long-term disability. If you need more than 6 months to recover after a surgical procedure, you may have job-related protections under the federal government’s Americans with Disabilities Act (ADA).
Under the ADA, a disability is any kind of physical or mental impairment that places considerable limitations on one or more major life activities. This includes duties associated with your job, as well as basic functions like walking, sleeping, hearing, and seeing.
One of the rights you have as a disabled worker is reasonable accommodations. When you have a serious injury that requires long-term recovery, it will be hard for you to do certain tasks at work. Depending on the worker’s position and the company’s resources, there may be an option to work from home or have a flexible schedule that accommodates doctor’s appointments and other medical needs. Perhaps the office layout can be changed, or the employee can be moved to another location. Or, they may be reassigned to another position until they are fully recovered.
Aside from the ADA, you have the right to ask for reasonable accommodations under the California Fair Employment and Housing Act (FEHA). This is a state law that protects workers from discriminatory treatment, including termination because of a medical condition. So, this is another regulation that you can take advantage of if you are fired after having spine surgery.
Pay $0 with the Zero Fee Guarantee
At the end of the day, discrimination based on a temporary or permanent disability is illegal, and you can take action against an employer that fires you after a major injury. If you believe that your spine injury and recovery needs are why you lost your job, please get in touch with us at your earliest opportunity.
When you choose to hire us for a wrongful termination case, you do not pay anything towards the cost of legal fees. Our attorneys work on contingency, meaning the cost of representing you is recovered from the compensation you receive from your employer. Thus, we can promise you that if we fail to win your case, you owe us $0 – guaranteed.
We look forward to hearing from you and fighting for justice if you were fired illegally or experienced any other form of employment discrimination.
