What Are My Rights After I Was Fired After Knee Surgery from a Slip and Fall?
Slip and falls can result in serious injuries. If you have experienced one so serious that you needed knee surgery, you’re likely still dealing with the pain and financial impact of the accident.
This may be alleviated by any compensation you receive from suing the responsible party. You may even be able to receive benefits and some time off work. But what happens when your employer fires you just after knee surgery from a slip and fall?
No one expects to be fired from work after returning from a painful recovery. You should know that state and federal laws protect workers from unjust and illegal termination.
Your employer cannot fire you simply because you need time off work to fully recover from your injury. California law also prohibits employers from firing workers that require employer assistance to get back to work.
Matters in this regard are hardly straightforward however. An employment contract is usually based on the ability of your employer to find suitable work for you. This means that there may be instances where your injury simply makes the situation impossible for your employer.
If you have been fired because you suffered an injury, you should contact the employment discrimination lawyers at Eldessouky Law immediately. Depending on your circumstances, particularly where the injury occurred, your rights and options may vary.
This article discusses some of those options and what you can do if the injury occurred at work or out of work.
What are my rights if the injury happened at work?
Slip and falls are one of the most common work-related injuries. Employees that have suffered these injuries may be entitled to compensation under the California’s Workers’ Compensation Act.
Under California law, all employers in the state must provide workers’ compensation benefits regardless of the number of employees. They are required to purchase workers’ compensation insurance from one of the licensed insurers in the state or from the State Compensation Insurance Fund (SCIF).
The state of California is so keen on protecting the rights of injured workers that even where the employer was not properly insured, the state will step in. California’s Uninsured Employer Benefit Trust Fund will provide workers’ compensation insurance benefits to injured workers. The fund will then attempt to recover the money from the uninsured employer.
In most cases, filing a workers’ compensation claim in California would involve the following:
- Reporting the injury
- Filing a claim with your employer
- Filing an “application for adjudication of claim” with the Workers’ Compensation Appeals Board.
Can my employer fire me after filing a workers’ compensation claim?
No. Even though your workers’ compensation claim results in some inconvenience to your employer, California law prohibits them from terminating your employment on that basis.
Firing you for filing a workers’ compensation claim would amount to retaliation which is an unlawful employment practice. The California Labor Code specifically provides that “there should not be discrimination against workers who are injured in the course and scope of their employment”.
In Raven v. Oakland Unified Sch. Dist. (1989) 213 Cal. App. 3, 1364, the court interpreted this policy to protect employees from retaliation for filing a workers’ compensation claim.
If your employer fires you solely because you filed a claim for compensation, you can take action against them for retaliation.
What if the injury happened outside work?
Even when a serious slip and fall injury happened outside the workplace, your employer may still owe you certain obligations.
If you became disabled due to the surgery, you may come under the protection of the Americans with Disabilities Act (ADA) or the Fair Employment and Housing Act (FEHA).
Both the ADA and FEHA make it unlawful for an employer to discriminate against an employee who is physically or mentally disabled. These laws also make it illegal for employers to fire employees whose disability or medical treatment prevents them from immediately returning to work.
So long as the disability impacts or limits a major life activity, the employee can come under the protection of both laws. Major life activities are those that affect employability or present a barrier to employment or advancement.
There are differences between FEHA and the ADA in this regard. Under the ADA, if an employee cannot perform her job, but can perform other jobs within a similar class or type of jobs, she will not be regarded as being disabled.
California law provides much wider protection though. California’s Code of Regulations explains major life activities as functions that include:
- Caring for oneself
- Performing manual tasks
California’s Government Code §12926.1(c) specifically states: “[U]under the law of this state, ‘working’ is a major life activity, regardless of the actual or perceived working limitation implicates a particular employment or a class or broad range of employment”.
Once you become disabled, and that fact comes to the knowledge of your employer, they must start a discussion to see if reasonable accommodations can be made to keep you in your job.
Was your employer dithering about the interactive process? That may be a cause of action on its own. Reach out to our Anaheim disability discrimination attorneys immediately.
What are my rights to unpaid leave?
If you work for a company with more than 50 employees, you may be able to get extended unpaid leave to fully recover from your surgery.
The federal Family and medical Leave Act (FMLA) allows qualifying workers to take up to 12 workweeks of unpaid job-protected leave. FMLA also requires your employer to keep your health insurance in force during the period of leave.
To qualify for protection under the FMLA, you must:
- Work for an employer with 50 or more employees who work at least 20 weeks a year
- Have worked for at least 1,250 hours in the last 12 months
- Live within 1 75-mile radius of the job site
California has a similar law in the Family Rights Act (CFRA). The CFRA also allows qualified employees to take up to 12 weeks of unpaid leave to recover from a medical condition.
The CFRA, just like the FMLA, prohibits retaliation from employers who take umbrage at employees that request extended unpaid leave. So, you cannot be fired for deciding to request for unpaid leave.
Can I get short-term disability benefits?
California operates a Short-Term Disability Insurance (SDI) scheme. All California employees are required to pay into this scheme through payroll deductions. If you are unable to work due to surgery, you may be able to collect weekly benefits from the scheme.
To qualify for SDI, you must have earned wages of at least $300 during your base period. This base period is the 12 months prior to the last calendar quarter before filing a claim.
The amount you can receive from SDI will be up to 60% – 70% of your wages. Although, the maximum weekly amount is $1,152. You may be able to receive the benefits for up to 52 weeks. The length of time is however subject to how long it takes you to recover.
As we have discussed, you may have several options open to you in the event of a knee surgery. If you have been fired by your employer because you chose to insist on your rights under any of these options, get in touch with us immediately.