The short answer is “Yes,” a company can tell you not to take unpaid time off, but of course there are exceptions and factors that need to be evaluated.
Unpaid time off is time off from work during which you don’t receive your salary. Normally, companies offer some amount of paid vacation days and/or holidays. Because your salary continues during these periods, this time off from work is considered paid time off. In contrast, unpaid time off is any time away from work that is not paid.
This question sort of misses the mark – as Jimmy Hendrix would say, “It goes a little deeper than that!” Georgia, like most states, is an “at-will” state, meaning that employees can be fired at any time for any reason, and the employees can quit at any time for any reason.
So, if the question is “Can an employee take time off from work even if the employer doesn’t approve it?,” the answer is yes; however, the employer can fire that employee for taking such time off, unless it falls in one of the exceptions below.
Yes! Decades ago, Congress passed the FMLA, or “Family Medical Leave Act,” which is a landmark law that forces companies to allow employees to take time off if they have a family or medical emergency.
What constitutes a family emergency? Anything that happens to your immediate family, such as your spouse, parents, or children, when that individual requires in-patient care. The amount of time off that the employer is required to offer can differ, depending on the severity of the case.
What constitutes medical leave? This is essentially the same parameters as for a family emergency, but impacting the employee themselves. The injury or health-related issue may be less serious, but if it renders the employee unable to perform normal functions at work, it is serious enough to require time off.
There is also an exception for military leave – employers are required to allow time off to employees called in for military “exigencies.”
The gist of the FMLA rules is that larger employers cannot make hiring and firing decisions based in any way on issues that the FMLA applies to (see above, about exceptions). Obviously, employers have tried to dress a wolf in sheep’s clothing, and there’s a lot of litigation that goes on in cases where an employer claims to have fired someone or turned them down for employment for one reason when it clearly looks to be medical-related.
So, if the FMLA does not apply, and an employee takes unapproved time off, the employer can normally fire that employee for non-performance (assuming the firing has nothing to do with discrimination against a protected class). If, however, the FMLA does apply, the employer is required to allow the employee to take some time off.
For a small business (below 50 employees), losing a full time employee can cripple the company and make it impossible for that business to succeed. For example, if a company has 4 employees, and one employee has to take 2 months off, the company is losing 25% of its capacity during that time – which means overtime work for the other 3 employees, and that may not be feasible.
When drafting the FMLA, Congress took this into account and drew the line at 50 employees – small companies, that have less than that threshold of 50 employees, are not constrained by the FMLA. In our experience, that 50 employee limit is more of a blurry or gray line, where 40 employees might be enough for a company to have to consider the FMLA, at least somewhat, but in general, smaller companies can make hiring and firing decisions more freely.
These days, more and more workers are paid as independent contractors, or 1099s. The FMLA does not apply to gig workers and independent contractors. However, we discussed earlier how businesses often misclassify workers as contractors when in fact they should be paid as full time W2 employees! If a 1099 worker needs to take FMLA leave for a company that has only 10 W2 employees but 50 contractors, there’s a solid argument that the company’s 1099 workers are misclassified, putting the company well over the 50 employee threshold, and that the worker needing to take FMLA leave should be allowed to take that time off without being terminated.
As you can see, there’s a lot of nuance to this, for both the employer and the employee. At Sparks Law, we’ve been dealing with these cases for over a decade, and are more than happy to help our clients to navigate their way to a successful outcome! Give us a call today!
