Can My Employer Refuse Time Off for Surgery?

Employer refusing unpaid time off for surgery

You have an upcoming surgery or procedure, and you’ve been preparing for weeks or longer. You’ve undergone preoperative tests and arranged for family members to care for you at home while you recover. There’s one final step, and it seems simple enough: asking your employer for time off.

If your employer denies your request, you will be understandably shocked. You are now faced with the dilemma of whether to postpone your surgery and risk your health or keep your surgery appointment and risk losing your job.

If you wonder, “Can my employer refuse time off for surgery?” the answer might surprise you. In some situations, an employer can legally deny your time-off request. However, federal laws protect many employees who need time off for surgery or other medical problems.

Employee Rights and Employer Responsibilities

Book titled "Employer Rights & Responsibilities"

The two main federal laws that speak to your employer’s obligation to give you time off to undergo surgery are the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Each law outlines rights and responsibilities for both the employer and employee.

The ADA requires employers to make reasonable accommodations for any employee who has a disabling condition if it will allow the employee to perform the essential functions of his/her job. What constitutes a reasonable accommodation will differ from employer to employer, but it may include giving time off to undergo surgery.

This requirement is balanced by the employer’s right not to agree to unreasonable demands or arrangements. If a proposed accommodation would cause significant disruption to the employer’s business and operations, the employer is not required to agree to or implement it.

The FMLA protects certain employees when they must step away from work for medical reasons, ensuring they do not lose their position or employment-related benefits. This protection lasts for up to 12 weeks per year.

During FMLA leave, employers cannot demote or fire the protected employee, and the employee must be permitted to return to work in a position they would have been in had they not taken a leave of absence.

However, not every employer must offer FMLA leave, and not every employee will qualify for FMLA. Moreover, not every condition for which surgery is sought qualifies for leave under FMLA. Employees attempting to secure FMLA leave when they are not eligible can have their leave request denied or revoked.

In addition, employees who know they must take FMLA leave must give their employers at least 30 days advance notice. If they do not, the leave request may be denied.

Circumstances Under Which Time Off Can Be Refused

If leave is not required under the ADA or the FMLA, employers are not required to grant it. In this situation, an employer can deny a request for leave for any reason, provided the reason is not discriminatory or illegal.

First, employers can deny time off for surgery if the request burdens the business too much. If your surgery is one of several requiring you to be absent from work for lengthy and unpredictable periods, your employer may not have to accommodate your request for time off.

The smaller the business, or the more specialized your job position and skills, the greater an absence due to surgery will burden your employer. The greater the burden imposed by your absence, the less accommodating your employer may be of the surgery and your request for time off.

Second, the FMLA gives certain employees the right to take up to 12 weeks of unpaid leave for medical reasons, even if it would burden the business. However, this right does not cover every procedure or situation. For example, some elective surgeries may not be covered under FMLA, and your employer would have no legal obligation to grant you time off.

Third, the FMLA only applies to employees who have worked for their employers for at least 12 months and have worked a minimum of 1,250 hours over the course of those 12 months. Additionally, the employer must have at least 50 employees working within a 75-mile radius of your workplace.

If any of these required conditions do not apply to you or your employer, you are not entitled to FMLA leave, and your request can be denied.

Can Employer Deny Unpaid Time Off?

You have even fewer protections when it comes to requesting unpaid time off. Search for the phrase, “Can employer deny unpaid time off?” and you will quickly find that employers have a right to deny requests for unpaid time off that are not covered under the FMLA.

Preparing for Your Time Off Request

To ensure that your request for time off has the greatest chance of success, you should plan ahead and explain your situation as early as possible. Review your company’s policies regarding requesting time off, including to whom the request should be made.

Complying with these policies will show your employer that you respect them and may make your employer more inclined to your request.

Generally, your request should be in writing and delivered to your company’s HR department or manager. A written request is preferred because it prevents your employer from claiming that you did not give notice or that your notice did not contain enough information.

Make a note for yourself to deliver your request for time off at least 30 days before the surgery date, which will help protect you if you are eligible for FMLA leave.

The ADA’s protections cover disabling conditions, but only if your condition is obvious or if you tell your employer about it and request a reasonable accommodation. Therefore, in your request, you should include why the surgery is necessary when the surgery will occur, and when you expect to return to work. You should also include information about potential follow-up surgeries or appointments after this initial procedure.

When preparing your request, you should have documentation available to substantiate your need for the surgery. An employer does not have to give the same consideration for cosmetic or elective surgery as they do for surgery that addresses a serious medical issue.

Having records that describe your need for the surgery will enable you to produce them easily if they are needed.

When Is It Illegal to Deny Time Off?

Judge ruling whether or not it is illegal to deny unpaid time off to an employee

If you follow all FMLA requirements when you request time off for medically necessary surgery, your employer is legally required to grant it, so long as they are a qualifying employer and you are an eligible employee.

If you are not covered under the FMLA but have complied with the ADA, your employer must grant you time off for the surgery, unless doing so would impose an unreasonable burden. Before denying your request, the employer should engage you in discussions and attempt in good faith to accommodate your request for time off.

It is also illegal to deny someone time off for a discriminatory reason. For example, an employer cannot consider an employee’s race, gender, sex, religion, or any other protected class when deciding whether to grant a request for time off.

Nor can a request be denied as a form of discipline for participating in a protected activity. For instance, it would be illegal for an employer to deny an employee’s time off request because that employee reported a safety violation to state authorities.

Steps if Your Request Is Denied

Even if you follow the law and company policy in submitting a request for time off, your request might be denied. If you have requested early, you should still have time to discuss the matter with your employer and seek a resolution. There are a few steps to take to reach an agreement with your employer.

First, speak with your HR department or manager and understand why your request was denied. Sometimes, a request is denied because you forgot to include important information, like when the surgery would occur or when you would return to work. These errors can be quickly fixed.

Next, remind your employer of the ADA and FMLA, if appropriate. If the time off request addresses a legitimate medical condition, inform your employer of this and request reasonable accommodations in the form of time off for surgery. Listen to your employer’s concerns, and see if there is a way those concerns can be accommodated while still allowing you time off for the surgery.

Last, seek legal counsel if you are not making headway with your employer but have a legitimate need for time off. An attorney can review your situation and determine whether your job is legally protected. Your lawyer can then engage with your employer, remind them of their legal obligations, and work to secure your time off request.

If your employer retaliates against you, your lawyer can take legal action to protect your job or obtain compensation for the loss of your job.

Common Misconceptions Surrounding Time Off for Surgery

Not every request for time off must be approved, and employers are not required to honor every time off request for surgery. Employers have the legal right to operate their businesses; they do not have to accommodate frequent or uncertain requests that greatly burden their business operations.

Also, it is a misconception to believe that your employer has no right to know why you need surgery. While you do not have to divulge your entire medical history, you may need to tell your employer about your condition to invoke the protections of the ADA.

Similarly, because the FMLA covers serious medical conditions, you may need to substantiate your request with evidence that your surgery meets this definition, such as a letter from a physician.

Last, do not assume that just because you are requesting unpaid leave, your request does not pose a burden to your employer. Be sensitive about your employer’s concerns and work with them to reach an agreement if they are having trouble accommodating your request.

Protecting Your Rights: Seeking Legal Counsel

Do not hesitate to contact the experienced Florida FMLA lawyers at Wenzel Fenton Cabassa, P.A. for answers to your questions about your rights under the law. Our team focuses on employees and employee rights, and we will advise you of what yours are if you need time off for surgery.

If your request is unfairly or unlawfully denied, we can work alongside you and assert your rights. Do not let your health suffer because of an unfulfilled time off request — allow Wenzel Fenton Cabassa, P.A. to support you.

Contact us today to get started.

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