Legal Question in Employment Law in California

If you are eligible for FMLA leave, the employer must allow you to take up to 12 weeks off to recover from the surgery. But this only applies to companies with 50 or more employees within a 75 mile radius of where you work. If it is a small company, you can ask them to reasonably accommodate you by extending your leave for a short period of time. Whether they must do so depends on many factors not provided for in your inquiry.

There are several overlapping laws in California governing employee rights to take medical leaves of absence. Whether your job is protected by these laws depends on the severity of your medical condition, the size of your employer, and how long you have worked for the employer.

If your employer employs 50 or more employees and you have worked for that company for at least 12 months and 1,250 hours, and you are suffering from a serious health condition (which I suspect you are given that you had hip surgery and are under a doctor�s care), your job is protected by the The Family and Medical Leave Act (FMLA) and The California Family Rights Act (CFRA). Under CFRA and FMLA your employer must give you up to 12 weeks of medical leave for your serious health condition, and may not retaliate against you for taking the leave when you return to work

If your employer employs 5 or more employees, regardless of how long you have worked for the employer, if you medical condition qualifies as a disability (which I suspect it does), you are protected by the Fair Employment and Housing Act (FEHA). Under the FEHA, the employer is required to reasonably accommodate your disability. A leave of absence is one type of reasonable accommodation. There is no specific length of time that is reasonable for a medical leave under the FEHA. Rather, the employer must have a conversation with you about how much more time off you need and make a determination whether providing you the additional time off requested will pose an undue hardship on the company. If it will not pose an undue hardship on the company to give you the additional time off, then the employer must give you the time off.

It is VERY important to note that if you are taking your medical leave under CFRA/FMLA, your employer CANNOT simply fire you once your 12 weeks are up. Rather, the employer must have a conversation with you about how much more time you need and make a determination whether providing you the additional time off requested will pose an undue hardship on the company. However, you are not entitled to an INDEFINITE leave either. Thus, for example, if your doctor provides a note to your employer which states that you may NEVER be able to return to work, the company may legally be able to fire you.

If your employer violates the law, please give us a call at (213) 536-4236, email us at [email protected], or fill in an online questionnaire at www.sarnofflaw.com.