6 months into a government job in Florida, need knee surgery

[Ruttrowg]

What is the name of your state?Florida

Florida is at will state.

I need a knee replacement and fear if I ask off for a month I will be immediately terminated. I am in good standing, no write ups, but fear being a little over six months into employment they may decide to let me go. It takes a year to get off probation.

Was hoping to get through a year then ask, but recently the knee has gotten worse. My job is salary based, and requires me to be frequently out in field, driving, lifting things up to 59 lbs on occasion. But they could put me on reduced activity doing desk work, I would hope. Knee replacement surgery takes 4-6 weeks to recover.


Is there anything I can do in advance to help reduce the chance to let me go? Something that could get on record that the knee surgery request resulted in termination instead of working with me to retain employment.

Thank you.

 

[adjusterjack]

Government job?

Are you in a union?

 

[cbg]

This answer assumes that you are not in a government job as they often have different rules.

If you are in a union, talk to your union rep to see what protections your contract may provide.

If you are not in a government job and not in a union, I'm going to give it you you straight. You are not eligible for any protected medical leave at this time since you have not yet been with the employer for twelve months. There are other criteria which may or may not be met but the fact that you've been there only six months means that FMLA does not apply.

You may be able to put together a weak ADA claim. I say weak because the ADA does not apply to temporary disabilities, and if surgery will resolve it your employer may be able to claim your disability is temporary. But if your employer doesn't know much about the ADA you may be able to put it across. You will need to talk to your HR department or whoever is in charge of approving medical leaves, and you will want to say to them using these words: "I have a disability and I am requesting an accommodation under the Americans with Disabilities Act". Once you have made that request, they are required to enter into an interactive discussion with you to find a reasonable - underline the word reasonable - accommodation that will allow you to perform the essential functions of your position. They are entitled to include your doctor in the discussion.

They do not have to give you the accommodation you want or even the one the doctor recommends - only one that works. It may be that the accommodation will be time off for the surgery, or it may be giving you desk work until you qualify for FMLA. Or, it may be that they will say, the ADA doesn't apply here under the Sutton vs. United Air Line ruling, and they can probably make that one stick. I don't think you're dead in the water, but I don't think you have a strong case either. If neither FMLA nor the ADA applies, then they can term you for an extended absence, even one that is medically based, and that termination will be legal.

But it doesn't sound to me as if you've even inquired; you've just assumed that if you ask for extended time off you'll be fired. I'm not saying you're wrong, but I don't think it's as cut and dried as you seem to think either. Before you start looking for legal protections, why don't you just talk to HR?

 

[not2cleverRed]

This answer assumes that you are not in a government job as they often have different rules.

And those rules probably vary depending on whether the "government job" is a federal, state, county, or local position.

 

[commentator]

You say you will be at work a year in before you get off probation. That is how long it takes to be qualified for FMLA, also. So is this a city, state or county or even a federal job?

Okay, to be pratical here. Knee jobs are something that you can usually decide to postpone sometimes. They are rarely emergency non-optional surgery. Are you sure there's not something you could do, such as curtail your lifting, lose some weight, ice and do physical therapy, acpuncture, etc. on your own time? Your orthopedic will be a good advisor in this quest. They like to do surgery on people who are fully insured and will have time to devote to rehabbing the knee after surgery. If you think you can be fully released and back to work after four to six weeks.....as someone who has both seen and had these types of surgeries, that might be a bit overly optimistic.

Depending on how fast your individual recovery goes, and how physical your job actually is, you may need more time and more accomodations when you do return. and having been there only six months, you probably don't have enough leave to do this surgery without doing time off without pay. That of course is if they want you to, will let you, will take you back after you are off. This is even with a state or other type of government job. And they certainly do not have to give you this kind of leave without pay, as you are not qualified for FMLA at this job yet.

But the first and most important thing you should do at the present time, if you really really need a knee replacement and can't possibly put it off six more months, talk to your departmental HR, if you are a city state or county employee. Ask them how it would work if you had a knee replacement at the present time. Ask how the insurance coverage might be affected if you were off work without pay? Ask what the policy is, how it usually works with a knee replacement. You are right about the firing you based on your having a lot of health problems such as bad knees. They might do that if you weren't working out so well anyhow, because you've clued them in on the fact that you do have bad knees and probably will end up costing their insurance some serious money. Surgery at this point is taking a risk.

 

[AlmostThere]

I would start by talking to your surgeon. You may have to jump through hoops such as PT before your insurance will qualify you for surgery, and then, in many cases, surgeons are booking a few months out. It could be that by the time you go through those things, you are darn close to the one-year mark anyway.

 

[Ruttrowg]

Government job?yes

Are you in a union?no

 

[cbg]

Federal, state, county or municipal?

 

[Ruttrowg]

Federal, state, county or municipal? County

 

[commentator]

As a county employee, if I was very interested in keeping this job, I would hang on for six more months and tell no one about any knee issues until I was off probation. Honestly, county governments are much more likely to be concerned with getting very healthy people on board for the long haul than almost any other government entity. The state has lots of employees, your county has a much more finite number, a finite amount of money to be spent yearly for health care for employees, and they know who they've got on a more personal basis, even if it is a very large county. So if you go in asking to be off and have a knee replacement before you are off your probabtion or qualified for FMLA, I'd say you are very likely to be let go, quite legally. They probably won't list that as a reason, but it will certainly be a factor they consider.

And I agree with Almost There, by the time you've had the rehab and booked anything, it would likely be close to a whole year anyhow. I am someone who has been fighting off another knee replacement for a long time now, and it can be done. Without disobeying a direct order from a supervisor or revealing too much to your supervisors and co workers, be very careful about what you do on the job, don't grab stuff to heavy lift without assistance, don't jump down off things or set up long walks for yourself as best you can. You know what hurts, try to avoid it. When you do have the replacement surgery it will not mean that in four to six weeks you'll be pain free and all well. It's a long and arduous recovery, and it is not foolproof guaranteed that you'll be a whole lot better off after surgery.

 

[cbg]

If the county has any specific mandates regarding medical time off in your first year of employment, they rule.

Otherwise, my advice above stands.