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Is it illegal to fire a full time employee (hired on) if they had doctor's orders that prevented them from working for 2 weeks?

San Antonio, TX |

I was hired on to a company and had to visit the ER for a procedure on my toe, which prevented me from wearing closed toe shoes (we had to wear steel toes). The doctor gave me a written order stating to return to work within 2 weeks. They stated they did not have "light work" for me, and fired me. I then received unemployment, which they had to investigate due to the employer stating that I had quit.

Attorney Answers 3


  1. It is not possible to provide you with a meaningful answer based on the limited information provided. In general, Texas is an at-will state, which means that an employer may terminate your employment with or without cause. However, there are some exceptions. For example, if your employer has at least 50 employees, and you were employed full time for the previous 12 months, you would have been entitled to take medical leave, without repercussions. Also, if you injured your toe at work, and filed a claim for worker's compensation benefits, you may have a claim for retaliation. There are a few other exceptions (i.e. prohibition against discrimination, etc.) but you need to provide additional information. You should probably speak to an attorney.


  2. Was the surgery related to a workplace injury? How long had you worked for this company before you were discharged? How many employees do they have?


  3. Here's the good news: If you are qualified for, and are approved for, medical leave under the Family Medical Leave Act (“FMLA”), your employer's ability to terminate you during the leave period is extremely limited. Here are the basics of FMLA eligibility.
    To be eligible for FMLA benefits, an employee must:
    •work for a covered employer;
    •have worked for the employer for a total of 12 months;
    •have worked at least 1,250 hours over the previous 12 months; and
    •work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

    I have posted a link below to the Department of Labor's FMLA Fact Sheet.

    Now for the bad news. If your employer has (on average) less than 50 employees, your situation falls under state law. Texas is an employment at will state. Typically, unless an employee has an employment contract, or is employed under a collective bargaining agreement through a union, the employer can terminate the employ at any time with or without cause. If an employer, at any time, decides they no longer want to employ someone, for any non-discriminatory reason, that employee can legally be terminated. However, an employer generally cannot terminate an employee for prohibited discriminatory reasons (such as racial discrimination), or in retaliation for certain protected actions (such as whistle-blowing).

    If you feel your employer terminated you in violation of the FMLA, you should contact an experienced labor and employment lawyer to discuss your potential claims.

    If your toe injury was work-related, you should consult a workers' compensation attorney.

    Good luck.

    Your question has been answered as a courtesy. This is not paid legal advice. Nothing in this communication is intended to create an attorney-client relationship. Unless expressly stated otherwise, nothing contained in this message should be construed as a digital or electronic signature, nor is it intended to reflect an intention to make an agreement by electronic means.

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