Can I be terminated because I was injured on the job?
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Can I be terminated because I was injured on the job?
I incurred a hernia on the job in
October. I was just told they may not
allow me to return to work at all. I was
told by the surgeon I can resume full
duties on January 2nd. Is this wrongful
termination?
Asked on December 19, 2018 under Employment Labor Law, Colorado
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
If you are out for longer than the total amount of time you have from any sick or vacation days (PTO) you earned plus FMLA leave (if you and your job both qualify for itl; see below), you may be terminated, such as for absenteeism: the law does not make an employer retain an employee who misses work unless the absence was covered 100% by PTO and/or legally protected (FMLA) leave.
FMLA leave is only for up to 12 weeks, so even if you could use it, you have already used up (3 months) its time, so if you are out for many more days than you have PTO, you could be terminated.
And you may not eligible: you can only use FMLA if:
1) The employer has at least 50 employees who all work within a 75-mile radius;
2) You have worked there at least a year; and
3) You worked at least 1,250 hours in the past 12 months.
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