Ask the Labor Lawyer #7 - The Vaccine and Leaves of Absence
Question: My employer is requiring me to get vaccinated by next week. I don’t want to rush into a decision, but if I don’t comply by the deadline I will likely be fired. How do I buy myself more time?
Response: If you want to postpone a threatened termination, one option is to take time off. In the U.S., we have laws protecting the right of employees to request a leave of absence. These laws often frustrate employers, who are just trying to stay fully staffed. Nonetheless, a leave of absence can be helpful to workers in your situation.
The federal Family and Medical Leave Act (FMLA) applies to employers with 50 or more employees. If you have worked for your employer for at least a year, you are likely eligible. Under FMLA, you are entitled to up to 12 weeks of medical leave. During this time, your employer generally cannot fire you or cancel your health insurance.
Note that FMLA leave is unpaid. You will also need to pay your employer for your portion of your health care premium (what is normally deducted from your paycheck). However, this is generally cheaper than COBRA. In addition, some states provide disability pay during FMLA leave.
How it Works
To apply for FMLA leave, you would first go to your doctor and ask for a note placing you off work. The reason could be something as simple as “work stress.” It is not difficult to find a doctor who is willing to write such a note, especially during COVID where stress levels are higher than usual. The “flexibility” of many doctors in excusing employees from work is maddening for business owners. But, again, it can be helpful in your situation.
Once you give the doctor’s note to your manager and/or Human Resources, they will give you additional paperwork to fill out. Some of it will need to be filled out by your doctor. Make sure to complete the paperwork in a timely manner, and make sure to get extensions from your doctor as needed, up to the 12-week allotment.
Even if you are not eligible for FMLA (for example, if your company has less than 50 employees, or if you have not worked there for at least a year), you may still be eligible for medical leave under the laws of your state. You may also be eligible for leave as an accommodation for a disability under the Americans with Disability Act (ADA). Even just the process of asking for leave can buy you more time.
Use Your LOA Well!
While on leave, I encourage you to use your time wisely. Just because your doctor wrote you a note, doesn’t mean you have to act sick. Get up each morning and make a plan. Talk to people you trust, and gather the information you need to make the choices that are right for you. Apply for new jobs on RedBalloon.work! Perhaps you have a hobby that you can turn into a paid side hustle.
Then, once you are ready, ask your doctor to release you back to work. Whether you take the vaccine or whether you get fired, you can be confident that you took the time to make your best decision.
May your time be productive, whether working or on leave,
Laura, The Labor Lawyer