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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 35434
Experience:  Retired (mostly)
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termination because of surgery

Resolved Question:

My husband works for an auto body shop and is the only painter. He needs back surgery really bad he is afraid if he takes 4 to 6 weeks off they will fire him. He has worked for them for 13 years . Do they have the right to fire him because he needs surgery.

Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.

How many employees work at the body shop?
Customer: replied 1 year ago.

5 employees

Expert:  socrateaser replied 1 year ago.
Okay, thanks.

The law that would ordinarily protect your husband is called the Family and Medical Leave Act. It requires that the employer must have at least 50 employees within a 75 mile radius of your husband's job site. This can be employees who work in other facilities owned by the same employer -- so, if the employer owns multiple body shops, or gas stations, auto mechanic businesses, etc., then those employees would all count towards the 50 employee requirement. Also, it doesn't matter what the employees do. They don't have to be body shop employees. They can be bookkeepers, receiptionists, drivers, convenience store clerks, etc.

If there is no way that the employer can possibly have 50 employees, and even if it's possible, your husband may have a different means of dealing with this problem.

Because he has worked for the same employer for 13 years, then your husband could very likely demonstrate that his injuries are the result of his work -- but that they simply built up over a long period of time. In order to determine this, your husband would have to file a Workers' Compensation Insurance claim.

Once he files the claim, an occupational medicine doctor or your husband's current doctor, will determine whether or not this injury could have developed due to years of manual labor. And, while that determination is being made, the employer would be subject to a heavy penalty if it were to fire your husband, because Labor Code 132a provides up to a $10,000 additional damage award for discrimination or retaliation against an employee who files a Workers' Compensation claim. So,

If your husband thinks he can show 50 employees within a 75 mile radius, then he can have his doctor certify that he needs FMLA leave benefits, and his job would be protected for up to 12 weeks. Your husband just needs to have the doctor fill out this form. Then your husband would give the form to the employer and tell the employer when the FMLA leave is scheduled to start. After that, his job is protected.

And, if your husband wants to try the workers' comp route, then he must fill out a form DWC1 and then give it to the employer. The employer must send the DWC1 to the workers comp division. If your husband thinks that the employer is "stalling" and that it won't submit the form, then your husband can contact the local workers comp office directly and file a complaint (click here).

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 35434
Experience: Retired (mostly)
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