If your employer is subject to the Family and Medical Leave Act (FMLA) and you are on qualified FMLA leave, then the employer is obligated to hold your job for you while you take leave.
If you're a full-time employee with more than one year of service, and the employer has more than 50 employees, you may qualify. Contact a local employment law attorney to determine whether you are protected by the law.
You are entitled to have your job back if you were on FMLA/CFRA leave. You may also be entitled to time off, without losing your job, if your knee injury was the result of a recognized disability, or because of a work-related injury.
I hope this information is helpful to you.
Craig T. Byrnes
Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.
There are various sources of POTENTIAL protection related to your medical status.
If the condition is due to a disability as defined by law, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) and the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) may provide some protection. Please look at my guide on the ADA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada and also on the differences between the ADA and California’s more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence can be a proper reasonable accommodation.
There is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law. You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) and the California Family Rights Act, Government Code section 12945.2 (CFRA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you have a serious medical condition as defined by the FMLA. The FMLA allows employees to take leaves of absence from work without repercussion, up to a maximum of 12 weeks per year. Leave can be in increments as short as fractions of an hour.
Please look at my guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) to see if that law applies in your situation: http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.
Finally, if the condition is due to on-the-job injury, is caused by work or is made worse by work, California’s workers' compensation laws may provide some relief. To find a workers' compensation attorney, please look at the membership list of the California Applicant Attorneys Association (CAAA) http://caaa.org/cs/. CAAA is the strongest bar association in California for attorneys who represent injured workers.
Your rights under each of these three laws are independent of one another. That is, you may be entitled to protection from each of these laws at the same time.
Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope you can resolve your situation and wish you the best.
twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
As other attorneys pointed out, if qualify for FMLA/CFRA leave then you should apply for such leave in writing as soon as possible with your employer. If your employer consists of under 50 employees but over 5 employees, than you are protected by FEHA (fair employment and housing act), and you are entitled to a reasonable accommodation to your injury and surgery. Once such accommodation is having time off to recover from your injury and surgery. Then, the question becomes whether keeping your position open or otherwise accommodating you would impose undue hardship on your employer's operations. This is a highly fact specific question and more details are needed about your job duties, the nature of your employer's business, etc...
San Francisco Employment Lawyer