Albuquerque, NM asked in Employment Law for New Mexico

Q: Can my employer replace me with a new hire because I had to take two days off to undergo a medical procedure?

My employer recently got a new manager (he has been there for 3 weeks) I have worked at the company for 8 months (since it opened) and have had the exact same schedule since that point(I have documentation of this), and have never asked for a single day off. I requested two days off because I had to undergo two necessary medical procedures that week which prohibited me from lifting more than 5 lbs and out of caution thought it best to not go into work and risk any complications. Not only did the following weeks schedule change completely, there were two new hires working my usual shifts. Can my employer do this, and do I have any legal ground to stand on? I feel like he was being discriminatory towards my medical situation. Please help as I am feeling backed into a corner. *also I felt like he was coercing me into offering him details of my medical situation that were matters I preferred to keep private. What should I do? EDIT: medical procedure=2 nonelective biospsies on lumps.

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2 Lawyer Answers
Marshall Jason Ray
Marshall Jason Ray
Answered
  • Albuquerque, NM
  • Licensed in New Mexico

A: You will need to consult with an attorney where you can provide more details to determine what the legal implications are of your employer's actions. As a general rule, unless there is a contract stating otherwise (such as a collective bargaining agreement), an employer can fire and replace an employee for any legitimate reason or for no reason at all. The employer can also change your schedule, or give the shift you prefer to another. If, however, your employer takes an adverse action (and cutting your shift or putting you on a different, unfavorable assignment can count as an adverse action) for an illegal reason, such as disability or a serious medical condition, then you could bring a complaint against your employer. You have not provided enough detail to get a definite answer here. You mention a medical "situation," but do not explain what this means.

1 user found this answer helpful

Trent A. Howell
Trent A. Howell
Answered
  • Santa Fe, NM
  • Licensed in New Mexico

A: In certain situations, the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and/or New Mexico Human Rights Act ("NMHRA"), NMSA § 28-1-1 et seq., entitle an employee to unpaid time off for medical procedures and prohibit the employer from retaliating after the employee does so. Whether either applies to you would depend on the details of your employment and situation.

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