Olney, MD asked in Employment Law for Maryland

Q: Need a week off for surgery. Have no accrued PTO left. Employer says I'm not allowed to take unpaid time off.

I had a bad 2017 and was absent from work several times. Used up my accrued time off. Now I find out I need surgery very soon (not related to my previous time off). Painful tumors in my uterus. I am hourly for a small medical office. Employer says I am not allowed to take unpaid time off. If this is the case, how can someone take their prepaid vacation, lets say two months from now if they use up accrued time off for a semi-urgent sick reason beforehand? (Sure in that two month there is a small amount of re-accrued time though). This prevents people from wanting to use their PTO, and go to work sick. I think my employer is just mad that I will be out again.

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1 Lawyer Answer
Jonathan C. Puth
Jonathan C. Puth
  • Washington, DC
  • Licensed in Maryland

A: Because you have a serious health condition you should be covered by the federal Family & Medical Leave Act (FMLA), but that requires that your employer have 50 employees within 75 miles of the worksite. If there are not 50 employees but there are at least 15 employees, the Maryland state FMLA protects you to take 15 weeks of leave (not necessarily paid). Thus if there are that many employees you should be able to let your employer know that you are entitled to take unpaid leave for your surgery.

It is also possible that the health condition you describe qualifies as a disability under the Americans with Disabilities Act and state law as well, though both require 15 employees in the company. If you are working in Prince Georges, Montgomery, or Howard County, however, then you are covered when there is at least 1 employee. Under all circumstances should ask your employer for leave as an accommodation in order to have and recover from surgery for a disabling medical condition.

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