Question: An employee has informed us that she has an upcoming surgery and that she will need off 15 weeks for the surgery and recovery.  She indicated that the surgery cannot be delayed.  The surgery is scheduled for our busy season.  We only have 7 employees so we are not covered by the federal Family and Medical Leave Act. Can we deny her request?

Answer:

Probably not.  Massachusetts has a robust Paid Family and Medical Leave statute that provides up to 26 workweeks of job-protected leave to employees per benefit year, 20 of which can be use for the employee’s own serious health condition. Almost all employees and employers in the Commonwealth are covered, with very limited exceptions. Even if an employer has a legitimate, business based reason to want to deny the leave (here: short staffing during the busy season), so long as the employee meets extremely low eligibility criteria set by statute (minimum earnings) and the leave is being taken for a qualifying reason, which includes leave for an employee’s own serious health condition, the employer cannot deny the leave and must treat it as job protected. 

Even if the employee is not eligible for Paid Family and Medical Leave, the employer in this instance may have legal obligations under the Americans with Disabilities Act and corresponding state law. The Americans with Disabilities Act and corresponding state law require employers to provide reasonable accommodations, which can include job-protected, block leave, to qualified employees with disabilities, unless doing so would pose an undue hardship to the employer.  The undue hardship standard is a high one and must be analyzed on a case-by-case basis.  Employers with questions should consult their legal counsel. 

This question was answered by Amelia J. Holstrom, a Partner at Skoler, Abbott & Presser, P.C. Amelia can be reached at aholstrom@skoler-abbott.com