Time off for surgery

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Time off for surgery

My current employer is giving me a hard time for
wanting to take time off for surgery . I provided a
doctors note from my doctor and giving four months
notice. I however never told him what is was for but a
coworker did … since he thinks its cosmetic surgery
he wont allow me time off . He has called my
surgeon to get information as well to verify my note
…. however my surgery is not 100 perfect cosmetic.
Im getting implant removal due to serious pain.

Asked on September 12, 2019 under Employment Labor Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Unless you have PTO, sick/vacation time or are eligible for coverage under the FMLA, you have no right to be out for an unexcused absence. This is true even if it is for a health related matter. The fact is that most work relationships are "at will". This means that a company can set the conditions of employment much as it sees fit (absent some form of legally actionable discrimination). 

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

If you have PTO (paid time off) you accrued, like sick or vacation days, you can use it for this purpose. Or if your company is large enough to be covered by the Family and Medical Leave Act or FMLA (has at least 50 employees who work within a 75-mile radius) and you are eligible for FMLA leave (worked there at least a year; worked at least 1,250 hours in the last 12 months), you should be able to use FMLA leave for this purpose. 
But if you do not have PTO to use and cannot use FMLA, your employer can refuse to give you time off. There is no right to take time off for surgery or medical care, except through the use of PTO or FMLA--which is why FMLA was created; to give at least some employees the right to medical time off--or the use of a state program similar to FMLA, if you state does have any such medical leave laws. (Though most such laws, in the states that have them, have similar eligibility requirements to FMLA.)


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