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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12928
Experience:  Significant experience in all areas of employment law.
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I had surgery on my shoulder a week ago. 15 minutes before

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I had surgery on my shoulder a week ago. 15 minutes before I was to leave work for my medical leave I was called into a formal conference room and with my direct supervisor, the controller and the payroll administrator I was asked why I chose to take only some of my sick leave toward my leave. I told my employer my doctor said I would be out 4-6 weeks depending on what was found when she did the surgery. I wanted to save some of my sick time for the physical therapy once I was released to come back to work. The controller seemed very upset with this. Then she said she was legally required to keep my job open for 12 weeks under the family leave act. The controller went on to say that their lawyer said I must contact them every few days by email to let them know how I was doing so they can print this and put in my employee file. When I replied that I was not seeing my doctor every few days and that I assumed I would be resting more than anything I wouldn't have regular updates that she wanted. She then said, ok, then email us once a week just to let us know that you are alive. This way we know what is going on and my impression was that this was so they knew I was interested in keeping my job. (and words were said to that affect) however I don't remember the exact wording in that as I was pretty upset as I have never, in the 12 years that I worked there, taken any sort of leave other than a 10 day vacation and sick days-never more than 2 at a time as I am very healthy. If they had simply asked if I could let them know how I was doing, I owuld have no problem with that at all. I had already agreed to contact my direct supervisor (at her request) the night of my surgery to let her know how it went and then again the next day when I did a post op follow up with my doctor. I have always put my company 1st and always got the job done and have an excellent reputation within my company so I don't understand. So basically what I want to know this something the emails on a weekly basis something I must legally comply with? In addition to that can they generally just require me to do this as a company policy? There is no policy for this tht I am aware of. Can you give me any advice or should I just let this go? If you have any other questions, please let me know. Thank you for your time.

Thank you very much for your question. I am truly sorry to hear that your company has reacted so negatively to you taking time off for surgery, especially in light of the fact that you have been a loyal employee for so long.

First, let me back up and explain the protections afforded to you under the Family Medical Leave Act ("FMLA"). The FMLA is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave on account of, among other things, a "serious health condition" which prevents an employee from working.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position, if he/she returns on or before the expiration of the 12-week leave period.

Among other things, an employer can be sued for interfering with an employee’s FMLA leave, denying FMLA leave, refusing to reinstate an employee who timely returns from FMLA leave, requiring an employee to take more FMLA leave than the employee needs, or retaliating against an employee who takes FMLA leave

While an employee may take up to 12 weeks off for a serious health condition under the FMLA, they must demonstrate a continuing "period of incapacity" during all FMLA-approved leave time, and an employer is permitted to request reasonable updates regarding an employee's condition to determine whether they are still in a "period of incapacity."

It sounds like this is what your company is trying to get you to do, and they have a lawful right to request this. Fortunately in the state of California, testimony from the employee alone is typically sufficient to establish incapacity. For complicated reasons, the law is different in other jurisdictions where continual doctors notes re-establishing your condition are required. This would explain why, when you informed your employer that you would not be seeing your doctor every few days that your employer asked you to check in with them and provide updates. Your checking in with them and assuring them that you are still incapacitated is legally sufficient to extend your FMLA leave, typically speaking.

So to answer your question most directly, your employer's request that you check in on a regular basis and update them on your condition is a lawful request with which you must comply. Fortunately, in the state of California, you do not need to produce regular and recurring doctors notes every few days and your own testimony regarding your condition is sufficient.

While I certainly understand your frustration with regard to the way you are being treated by your employer, they are not violating any law by making this particular request.

I wish you the very best with your shoulder recovery. I once had a shoulder surgery to address a chronic dislocation and the rehab was a slow and difficult process.

I hope that the information I have provided allows you to put this aside, move foward, and focus on your health. If you have any additional concerns regarding this matter whasoever, please do not hesitate to let me know. If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 5 years ago.

Thank you so much, I feel much better. I have no problem talking to them and letting them know how I am doing, I would have done that regardless. It was the way in which they did it and the overall tone. My surgery went very well and I may be able to get back to work a little quicker than I thought so that is very good. I had a torn bicep tendon. As you can tell this experience was an eye opener for me and I can see the direction my company is going in and it is not good. I am taking the time now, while I heal, to figure out where I want my professional future to be. I have a lot of options. I know...more info than you need but you have relieved a worry that I had and I thank you very much.

Thanks for being here for people!! It is a great service you do.

Have a great day.



Thanks so much for the kind words! I am thankful to have the opportunity to help people through this website. All the best to you in your recovery and your professional career.