Is it legal?

San Jose, California (only U.S. law)?

Hi,

My wife is planning to have surgery next month and she needs one month for recovery after surgery. She needs to fill out and submit the sick leave form to her boss in advance two weeks before the surgery performmance. Is it legal if the company lay her off after received the sick leave form from my wife? Sorry for my bad in English.

Thanks

That depends.

If she would have been laid off regardless of whether she took sick leave or not, then yes, it is still legal to lay her off afterwards. Not even FMLA protects an employee from a layoff that would have happened anyway.

If that is not the case, then it depends on whether FMLA applies. FMLA applies when ALL of the following are true:

1.) The employer has 50 or more employees within 75 miles of her location
2.)She has worked for the employer for at least 12 months
3.) In the 12 months immediately preceding her leave, she worked no less than 1,250 hours
4.) She has a serious health condition as defined by the FMLA statute.

If even one of these four criteria is not true, then FMLA does not apply.

IF FMLA applies, then she cannot be laid off BECAUSE OF her absences as long as she returns to work without exceeding 12 weeks. Though, as indicated, she can be laid off for other reasons.

If FMLA does not apply, then she can be laid off when she has exceeded the amount of time off the employer has chosen to give.

"Sick leave" by itself, approved or unapproved, with or without a doctor's note, does not protect her job. Only FMLA protects her job; it only protects it for 12 weeks, and it only protects it from layoffs that are related to her taking FMLA.

What does FMLA mean?

Thanks

FMLA stands for the Family Medical Leave Act, which is a law that protects an employees job when they are out for their own or a qualified family member's illness under the circumstances described above.