Provided by:  Jennifer Kirschenbaum, Esq.

August 22, 2017




I had an employee come to me last week to inform me he is going out for 8 weeks for elective surgery, providing only 6 days notice for the 8 week leave. He further told me that it could be done in September but he and his family want to get it done sooner.  I asked him to please consider the hardship he is placing on the business and co-workers and to schedule for September. He did not consider my request. 

Being short at this time of year is placing a great hardship on the business, I will need to hire someone to fill his position at least temporally, what is my obligation to hold his spot for him when he is back in 8 weeks?    

Thank you for your opinion.

Have a great day.



This is a great question for the newsletter because it comes up a lot. Before I can provide a specific answer for you, I need to know more about your company and circumstances of the employee – which is why you probably need a real consult (on the clock) for the right answer. But, I’ll use the newsletter to show you what I need to consider to properly advise you on the circumstances. I need to know if you qualify as an employer subject to the Family Medical Leave Act – do you employ 50 or more people? We can discuss what “employ” means, v. retain 1099s and what “50” means – if you have a revolving door environment and you’re on the cusp. Next, I need to know (even though you indicated the surgery is elective), is the employee going in for a face lift or fixing a partial ACL tear he incurred while on the job? Both could be “elective”, but it matters. 

I also need to see what policies the company has in place related to leave - notice required, etc. And, any employee contract or other agreement with the employee that has been executed. 

I also need to know if the employee qualifies or will qualify post-surgery as “disabled” under Federal or STATE law.  Each State has its own rules you have to follow in treatment of employees and their rights.  Here in NY, the Executive Law has its own definitions of disability and authorizes employees to take action against an employer if they are terminated or treated disparately based on a protected class.  So, what state/county are you operating in? 
The notice provided is another issue – and depending on what your answers are to the above will vary the advice we can give on how to handle. Let’s say this is more then you wanted to consider and you just want to fire the guy for being a poor citizen and giving inadequate notice – if you answer in the affirmative to having more than 50 employees, you could be inviting tremendous exposure and aggravation for terminating.  If you have less than 50, but a State law applies that gives the employee protections and rights against  you,  you may have just invited a complaint to the overseeing government agency or a lawsuit.  All depends on the circumstances.

You did the right thing asking before acting. Send us the details and lets set a time to discuss the best course of action.