This is a guest post by Clay Hodges, a partner in the law firm of </ems/fmla-and-leave-discrimination>Harris, Sarratt & Hodges, LLP. Clay represents people harmed by defective artificial hips and other medical devices. His office is located in Raleigh, North Carolina. He frequently writes about product liability issues.
Artificial hips are becoming more common and increasingly used by younger people. About 175,000 people have had hip replacement surgery, according to WebMD. Those getting hip implants are increasingly in their 40s and 50s. If your doctor is telling you to consider hip replacement surgery, you may be wondering three things:
- How much time will you be away from work?
- Will your employer pay you for that time?
- How can you keep your job?
Time Away From Work
The recovery time for hip replacement surgery can vary depending on your overall health, your age, and any complications resulting from the surgery. Though you may be out of the hospital the same day or in a day or two, months of physical therapy could lie ahead of you. You may need to take time off for these appointments. If you have a physically demanding job, you may need to restrict your work or stay home for an extended period. Of course, if you have a desk job, you may not need to miss as much time from work.
You may also need to take time away if your artificial hip fails. Some artificial hip models have had unusually high failure rates. These flawed medical devices can cause injuries not only in your hip area but also throughout your body. One recent medical problem with failed metal-on-metal artificial hips is “metallosis,” a condition where tiny metal particles grind away from the components and leach into your body. Metallosis can cause severe problems, and your doctor may have to replace your defective artificial hip in another “revision surgery.” If this happens, you may require another round of recovery and physical therapy and may face greater physical limitations.
The Four Main Hurdles to FMLA Qualification
Forty percent of the country’s workforce is not covered by the federal Family Medical Leave Act (FMLA), according to NPR. That is because there are multiple legal limitations to qualifying for its protection. Whether you have had an artificial hip implanted or are suffering side effects from a defective artificial hip, your employer should allow you to use FMLA leave if you meet the following four criteria:
- You have a serious health condition that makes you unable to perform the essential functions of your job. A serious health condition is an illness, injury, impairment, or physical condition that involves inpatient care or continuing treatment by a health care provider.
- You work for a private employer that has employed 50 or more employees (within 75 miles of your work location) in 20 or more workweeks in the current or preceding calendar year. Alternatively, you work for a public employer or for a public or private elementary or secondary school (regardless of the number of employees).
- You have worked for the employer for at least 12 months.
- You have worked at least 1,250 hours for the employer during the 12-month period immediately before the leave.
Keep in mind that if the federal statute will not help you, you may be able to rely on state or local family medical leave laws, depending on where you live.
Another possible hurdle is that the time off will be unpaid (other than any accrued paid time off your employer can require you to use), so that may become a financial burden on you. The FMLA provides 12 weeks of unpaid leave for covered employees. That unpaid time off can come in the form of intermittent leave (only when you need it), a reduced work schedule, or time off.
If you seek or take FMLA leave, the law has retaliation provisions that make it illegal for your employer to retaliate against you.
Summing It Up
If you are undergoing artificial hip implant surgery, you likely have a “serious health condition” under the FMLA. What may trip you up are the other requirements of the FMLA, such as how many employees your company has, how many hours you worked, or how long you have been employed.
If the FMLA does not cover you, local or state laws may help. Or, you could simply ask your employer for the time off. Your company may have a practice or policy allowing you to take enough time off to meet your needs. Though your hip may hurt, it doesn’t hurt to ask your employer for assistance.