I had a reconstructive knee surgery June 29th, specifically a High Tibial Osteotomy due to knee malalignment. I was put on disability leave by my employer (although I asked to be able to work from home via fax - I'm in outside advertising sales) and used my week of vacation time for that first week. Fortunately, part of our benefits include short-term disability insurance so I'm getting a small paycheck rather than nothing. I'm still to this day on a non-weight-bearing status and my doctor has not cleared me to return to work yet, as the bone is still healing and not ready to be walked on. As a result, I've been on crutches for the last 6 weeks and unable to walk or stand unaided.
Here's a caveat. According to the doctor, who fixed the major malalignment in this surgery, my articular cartilage is damaged on my femoral condyle. He took cartilage samples during the first operation and sent them to a biologics company, who are growing cartilage cells. This will require a SECOND surgery to repair my knee and additional time of non-weight-bearing with crutch usage as well as physical therapy to be able to walk again post-op.
Upon hearing this news of the second surgery, which has been set for September 7, I called my HR contact at my employer. She told me that I'd be separated from employment and thus terminated. Of course, she said I'd be sent documents for COBRA coverage and I could reapply for a job later. COBRA is very expensive, and my current insurance would also terminate according to her.
My problem first of all, is that I have to have insurance cover this second surgery as well (it had been approved for coverage by my current insurance) as well as the 3 to 4 months of physical therapy that will be REQUIRED for me to be able to walk again.
I know that my inability to walk from June to approximately October or November has been substantially limited per the ADA requirements and I haven't been released to return to work yet by my doctor. My question is this: Do I have any legal ground to fight my termination number one, on disablilty leave, and two, per ADA disability discrimination laws?
I appreciate any and all advice and suggestions.
1 Answer from Attorneys
ADA only requires an employee to make reasonable accomodation for a disability, meaning if they can do small things to allow you to work, they must. This does not sound like an ADA situation (unless your job is solely sitting).
As for a claim as to discharge, Georgia generally is an employment at will state so you could possibly have no claim.
Nonetheless, given the possibility of a claim (you didn't say if you have, for example, an employment contract), you should meet with an employment lawyer. That isn't my speciality, so take my general answer that I don't see a claim with a grain of salt and ask a specialist to be sure.