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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 115449
Experience:  20+ Years of Employment Law Experience
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I have a hip-replacement surgery scheduled on May 11. 2016.

Customer Question

I have a hip-replacement surgery scheduled on May 11. 2016. My employer knows about this for weeks. On April 28. I was told that I'll be terminated on may 10. 2016, one day before my scheduled surgery. Now
JA: The Employment Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: II dont know if i have my health insurance to cover my srugery.
JA: Not for this question, but they might if you need additional services. You'll have to ask the Employment Lawyer about that.
Customer: Who is available to answer this question?
JA: Is there anything else important you think the Employment Lawyer should know?
Customer: I dont have much time , just one week . if i dont have insurance, i have to cancel my surgery. Is this legal or can I get insurance coverage with family leave?
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Employment Lawyer about your situation and then connect you two.
Submitted: 1 year ago.
Category: Employment Law
Customer: replied 1 year ago.
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Expert:  Phillips Esq. replied 1 year ago.
I am so sorry to read about this. What is the reason that you are being given for your termination just a day before your scheduled surgery? Did the employer grant your request for family leave? How long were you supposed to be out? In what state do you reside?
Customer: replied 1 year ago.
The company I work has financial problems. I was told that my boss wants to do my work on his own. i had this surgery planed for two months and by boss knew about is. It's a matter of fact, i asked him weeks ago if this surgery and being out for a couple of weeks o my part, would be a problem. Because if this would be the case, I would have canceled my surgery, because I cannot
afford to loose my job. I was assured by my boss, that this is not the case. It was a shock to me, when i was asked when my last day before the surgery was and was told that this is my layoff day. My surgery was scheduled for May 11. 2016, - the layoff day is May 10.16. My insurance will be cancelled on on May 1. 2016. Now I have no insurance for the surgery and I guess no disability
insurance for the time of recovery. I am very upset about this and got really sick two days ago. I don't know what to do.
I was not offered family leave and I have not asked for it so far. The recovery time for hip surgery is approx. 2 months.
I live in California. I am 64 years old and I live with this pain for over 3 years. I tried to avoid this surgery because I was afraid to loose my job but the pain became unbearable.
Expert:  Phillips Esq. replied 1 year ago.
Thank you for the information. Are you the only person being laid off or is this a company-wide layoff? Why is your insurance being cancelled today, May 1?
Customer: replied 1 year ago.
I am the only person who was laid off last week. I got very sick after the news. I have high blood pressure and things got very
scary. My doctor instructed me to stay home for some days because of my medical condition. My boss told me that my medical insurance would end on May 1.,- I assume because i am sick and cannot return to work right now. i don't know if this is legal
but without the insurance coverage of the month of May, where the surgery is scheduled, I guess i have to cancel my surgery or ?
This is done on purpose by my boss and I don't know if I can do anything about it. I need to know if my surgery is covered or not.
I cannot take a chance and I have only 8 days left before the surgery. I need to know what is my right and where do I stand????
Expert:  Phillips Esq. replied 1 year ago.
Thank you for the information. I will have to opt out in hopes that one of my colleagues who specializes in both employment and health care law would further assist you. Best wishes,
Expert:  John replied 1 year ago.
Hi, new expert here. Does this employer have over 20 employees?
Customer: replied 1 year ago.
No, only11!
Customer: replied 1 year ago.
He has only 11 employees now.
Expert:  John replied 1 year ago.
I see. So what this means is that there will be no COBRA extension of healthcare benefits post-employment. The safest course for you at this time would be to cancel your surgery. You have a possible case of what is called ERISA (employee retirement income security act) discrimination. What this means is you were terminated because you were about to accrue a health or pension benefit. Second, an employer cannot terminate your benefits retroactive to the date of your employment termination. In this case the employer terminated benefits May 1, when you in fact will not be terminated until May 10th. He did this because he does not want to risk you being on the plan and not making your co-premium...but that's not your problem. In any event, while you do have a viable case, it will be months or even a year before that is worked out, and you should go see a local lawyer to discuss litigation for this. However, you do not want to make yourself subject to medical bills while this is all happening. If you cannot work you can apply with the state for disability benefits regardless of the fact that you are or will be terminated http://www.edd.ca.gov/disability/ Other options you have are 1) apply for social security disability (you'll get income benefits and after 2 years on SSDI you get medicare) or 2) wait until 65 at which time you can get medicare.
Customer: replied 1 year ago.
I was under the impression that I can get cobra, which I had to take from the month of June on. I just wanted the month of May
be covered by my insurance. Why do you say cobra is not available for me?
Expert:  John replied 1 year ago.
Actually, since you are in California - there is what's called Cal-COBRA which you can get. Usually, you must get federal COBRA which only applies to employers with 20 or more employees, but Cal residents can get Cal- COBRA for employer with 2-19 employees. This coverage, even though you do not enroll until sometimes as long as 104 days after termination, is effective the first day you lose coverage. You can review this information here: https://www.dmhc.ca.gov/HealthCareinCalifornia/TypesofPlans/KeepYourHealthCoverage%28COBRA%29.aspx#who
Expert:  John replied 1 year ago.
I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as itis the only way I am able to get credit for my answers. Thank you, ***** ***** wish you all the best with this matter.
Expert:  John replied 1 year ago.
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Customer: replied 1 year ago.
I did not get my questions answered.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
I am a DIFFERENT CONTRIBUTOR and I look forward to working with you.
Just to clarify, are you asking what your options are as to whether or not this termination was a lawful termination? Did you submit a request for leave under the Family and Medical Leave Act or the CA Family and Medical Leave Act? Does your employer have 50+ employees and did you qualify for leave under either act?