I work in retail as a sales associate, and I recently had a very frustrating interaction with my manager. I need breast reduction surgery and the availability of my doctor is limited – so when I was finally able to get a date for my procedure in mid-November, I took it. When I told my manager, however, she said this was a “bad time” because I wouldn’t be available to work Thanksgiving Day weekend, our busiest time of the year. (I’ll need 2-3 weeks to recover.) Can she do this? I realize now that I shouldn’t have told her what the operation was for because she probably thinks I’m having it done for cosmetic reasons. But that’s not true! I have issues with my back that make it medically necessary (and which are probably exacerbated by all the stooping and lifting I do for my job). Besides, I work really hard! I’m always picking up shifts when other people can’t make it in. Don’t they owe me?? I’m worried too because I’m employed under an “at will” contract. Couldn’t I be fired if I don’t reschedule? I’m really stressed about all this… – Name withheld

According to the human resources professional I spoke with, it is illegal for your manager to deny your request. And that’s true no matter what type of contract you signed.

Under the Family and Medical Leave Act (FMLA) of 1993, qualifying employees are entitled to up to twelve weeks of unpaid leave annually for medical reasons just like the one you describe. Your employer can’t deny you the time off, in other words, nor can they fire you.[1] The fact that your manager is either unaware of this, or willfully ignored the law in order to make her job of scheduling for a busy weekend easier, is inexcusable. If you were to file a formal complaint with HR over this incident, you would be entirely in the right.

That said, the “mistake” you made—although I’m hesitant to call it that since you’ve done absolutely nothing wrong here—was to approach your manager in the first place.

What you should have done was gone directly to your human resource department to complete the paperwork necessary for your leave. Once having done that, only then should you have spoken to your manager – not to ask for the time off, however. To inform her when you’d be unavailable to work. Unfortunately, by going to your manager initially—which probably stemmed from a desire to give your manager as much time as possible to plan for your absence (which, by the way, was extremely considerate of you)—you’ve put yourself in an awkward position professionally. Should you choose to have your surgery in November anyway, you might appear—in your manager’s eyes, at least—to be engaging in an act of insubordination.

It’s easy to feel powerless in situations like this. And that’s because, in reality, you are – even though the law may be on your side. I’m ashamed to say that when I first considered your dilemma, I became just a little bit frustrated by how easily you seemed to make yourself the victim here. Just tell your manager you’ll be out of work for a few weeks, and be done with it, I found myself thinking.

But the sad fact of the matter is that your employer could still fire you. And why not?

What recourse do you really have?

Given you’re a sales associate working in retail, something tells me you may not have the extra cash on hand to hire a lawyer, and would have to go into debt to do so.[2] Even if you do (or are able to find one willing to work on contingency), you’ll probably also need to find another job – and soon too, lest you fall behind on your regular bills. That’s a lot to take on in terms of time, effort, as well emotionally while at the same time preparing a lawsuit.

There are also plenty of other ways your employer might punish you for your “disobedience” without actually giving you a pink slip. Though this too is illegal under the FMLA, your hours might be cut, coveted shifts given to coworkers, and/or the physical demands of your job made more unreasonable. Proving in court this was done in retaliation for your request is apt to be especially challenging. And even if you do prevail, who wants to work for an angry or resentful manager anyway? My more thoughtful response is that it’s completely understandable that you would be worried, or might consider rescheduling your operation.

Finally, you imply that your disappointment in your manager is heightened by the fact that you see yourself as a good employee, and therefore are perhaps more “deserving” of better treatment. But I would remind you that workplace rights are not in any way contingent upon on-the-job performance.

Medical leave and other basic protections are things your employer owes you, regardless of whether you’re a superstar, or struggle in your role. The fair and just treatment of workers as specified by law is part of the bargain; it’s what all licensed businesses knowingly agree to when they choose to open their doors.

So even if you weren’t the productive and accommodating employee you undoubtedly are, that wouldn’t make you any less entitled to your rights.

Those are yours to have and to hold, and exercise whenever you please…in theory, at least.

NOTES:

[1] “Fact Sheet #28: The Family and Medical Leave Act.” US Department of Labor, Wage and Hour Division. Available at: https://www.dol.gov/agencies/whd/fact-sheets/28-fmla. Retrieved Nov. 3, 2023.

[2] According to the Federal Reserve, 37% of all US households do not have enough cash on hand (or cash equivalent) to cover an unexpected $400 expense. “Report on the Economic Well-Being of US Households in 2022.” Available at: https://www.federalreserve.gov/publications/2023-economic-well-being-of-us-households-in-2022-expenses.htm. Retrieved Nov. 3, 2023.