The question of whether an employer can legally fire someone for having surgery does not have a simple yes or no answer; rather, it depends entirely on the employee’s tenure, the size of the employer, and the specific circumstances of the medical condition. Federal and state employment laws offer significant protections against job loss due to medical necessity, but these safeguards are not universal.
Job Protection Under Federal Leave Laws
The primary protection for employees needing time off for a medical procedure is the Family and Medical Leave Act (FMLA), which provides eligible employees with up to 12 workweeks of unpaid, job-protected leave in a 12-month period. This leave is specifically for an employee’s own serious health condition, which includes any surgery requiring inpatient care or continuing treatment by a healthcare provider. If an employee qualifies, the employer must restore them to their original job or an equivalent position upon return.
FMLA coverage is not automatic and depends on three strict requirements related to both the employee and the business. First, the employee must have worked for the employer for at least 12 months, which do not need to be consecutive, and must have logged a minimum of 1,250 hours of service during the 12 months immediately preceding the start of the leave. Second, the employer must be a covered entity, typically a private company with 50 or more employees working within a 75-mile radius for at least 20 workweeks in the current or preceding year. If an employee meets all of these criteria, the employer cannot legally terminate them simply for taking the protected leave.
Termination during FMLA leave is only permissible if the employer can prove the employee would have been fired regardless of the leave, such as due to a company-wide layoff or a documented performance issue that predates the medical absence. The law guarantees the employee’s right to return to work with the same pay, benefits, and working conditions that existed before the leave began.
Anti-Discrimination Protection and Reasonable Accommodation
For situations where an employee does not qualify for FMLA, has exhausted the 12 weeks of leave, or requires modifications upon returning to work, the Americans with Disabilities Act (ADA) offers a separate layer of protection. While the FMLA guarantees job-protected leave, the ADA prohibits discrimination based on a disability and requires employers to provide reasonable accommodations. A condition requiring surgery often qualifies as a disability under the ADA, extending protections to the employee before, during, and after the medical procedure.
The employer’s obligation under the ADA is to engage in an “interactive process” with the employee to determine an effective and reasonable accommodation. These accommodations can include modifications such as a temporary change in work schedule, job restructuring to eliminate non-essential functions, or a temporary assignment to light duty. The ADA may require an employer to grant additional unpaid leave beyond the FMLA’s 12 weeks if that extended time allows the employee to recover and eventually perform the essential functions of their job.
The only limit on this obligation is the concept of “undue hardship,” which is defined as an action requiring “significant difficulty or expense” for the employer. Undue hardship is a high legal standard and is evaluated on a case-by-case basis, considering the size, financial resources, and nature of the employer’s operation. An accommodation is not considered an undue hardship simply because it is inconvenient; it must pose an excessive financial burden or fundamentally alter the essential nature of the business or the employee’s role.
When Termination May Be Lawful
Despite the broad protections afforded by federal laws, there are specific circumstances under which an employer can legally terminate an employee who is undergoing or recovering from surgery. The most common scenario involves employees who do not meet the FMLA’s strict eligibility criteria, such as those working for a small business with fewer than 50 employees or those who have not met the 1,250-hour work requirement. In these cases, the employee is often subject to “at-will” employment, meaning the employer can terminate the relationship for any non-discriminatory reason.
Termination also becomes lawful when an employee has exhausted all available FMLA leave and the condition requiring surgery does not qualify as a disability under the ADA, or if no reasonable accommodation is possible. If the employee cannot perform the essential functions of their job, even with a modified schedule or temporary adjustments, and granting further indefinite leave would constitute an undue hardship, the employer is generally permitted to terminate employment. The law does not require an employer to permanently change the structure of a job or create a new position for the employee.
A medical absence does not shield an employee from the consequences of pre-existing performance issues or legitimate business decisions. If an employer initiates a reduction in force or closes a department, and the termination is demonstrably unrelated to the medical leave, the action is typically lawful. Employers must prove that the termination decision was made independently of the employee’s need for surgery, using objective evidence of performance failures or economic necessity documented before the leave began.
Practical Steps to Secure Your Job Before and After Surgery
Providing Timely Notice and Certification
The first step involves providing the employer with timely notice of the need for leave, typically 30 days in advance if the surgery is foreseeable. Following the notice, the employee must formally request FMLA leave, which requires submitting a medical certification from the healthcare provider. This medical certification must clearly detail the serious health condition, the expected duration of the incapacity, and the anticipated return-to-work date. Failure to provide this required documentation in a timely manner can result in a denial of FMLA protection.
Maintaining Contact During Leave
During the leave, maintaining contact with the employer, such as providing periodic updates on the recovery status, is generally advisable. This communication should be provided only if it does not violate medical restrictions.
Securing Fitness-for-Duty Clearance
Upon nearing the return date, the employee should secure a fitness-for-duty certification from their physician, confirming they are medically cleared to resume their essential job functions. If the employee anticipates needing a modified schedule or work adjustments, they should formally notify the employer and be prepared to engage in the interactive process to discuss reasonable accommodations under the ADA.
What to Do If You Believe You Were Wrongfully Terminated
If an employee believes their termination was a direct result of their medical leave, a violation of FMLA, or a failure to provide reasonable accommodation under the ADA, immediate action is necessary. The first step involves consulting with an employment law attorney who can evaluate the facts, determine the strength of the case, and advise on the appropriate legal strategy. Collecting all relevant documents, including medical certifications, leave requests, and termination notices, is paramount.
The primary federal agency for filing a complaint is the Equal Employment Opportunity Commission (EEOC), which enforces the ADA and other anti-discrimination laws. A formal charge of discrimination must be filed with the EEOC or a corresponding state agency within a very strict timeframe. In most jurisdictions, this deadline is 180 days from the date of the alleged discriminatory act, though it is extended to 300 days in states that have their own anti-discrimination laws and enforcement agencies. Missing this deadline can permanently forfeit the right to pursue a claim.