Legal Question in Employment Law in Virginia

Back Surgery

I had a conversation with my employer about a 2nd spinal surgery I may need to remove hardware that in the previous year was put in my back. My employer who employs much more than 50 people stated that he could not guarantee my job. It has been over a year since my last surgery and I am still in alot of pain and not able to perform my duties the way I should. He told me that he needed someone that could be at work more often yet I do not miss any days. I only took off early for physical therepy and dr appts for the same medical problem after my first surgery. In fact I did not use the 2 days vacation I had left last year because I felt I was needed at work during Nov and Dec. He said he needed me at 100% and would not guarantee my job if I got another surgery. I need to have this surgery so I can be a better worker but I am scared I might lose this job because my employer is losing patience with me. I work in Virginia and am an empoyee at will. The first surgery was in april 2006. Isnt my job guaranteed to me even though I am going through a second surgery?


Asked on 5/11/07, 9:31 am

1 Answer from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

Re: Back Surgery

If you take FMLA leave for your second surgery, your employer must under FMLA requirements return you to your postion which you had immediately prior to the surgery or a similar position with similar salary and benefits. If the employer fails to do so or later effects a pretextual dismissal, you would then appear to have a viable basis to bring suit against this employer for your damages in the appropriate federal court.

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Answered on 5/11/07, 8:21 pm


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