Can I terminate an employee who does not return from leave?
Michael W. Kulakowski, Esq. |
Common HR Questions
Sound familiar? The question of how to respond appropriately when an employee has exceeded his or her approved leave time is one frequently encountered by the MEA team of experts. Members often turn to MEA in search of resolution to this common yet complex situation, one that can be fraught with uncertainty and frustration.
Despite the frequency with which this question is asked, there is not a categorical, “one size fits all” course of action that applies to every organization. While an employee’s unanticipated absence may lead to disruption and even distress in the workplace, acting in haste to resolve the matter can yield significant legal implications. We are committed to helping Members examine the totality of circumstances and identify which laws apply before determining the most suitable solution.
Because the topic resonates with so many of our members, this month we are sharing a recent hotline exchange that underscores the importance of communication and legal compliance when responding to an employee’s extended leave from the workplace.
Member: One of my employees has been out of work for seven consecutive months now. His extended absence is adversely affecting business operations and has put considerable strain on those left to manage his workload. Am I at liberty to terminate his employment?
MEA Expert: Thank you for outreaching to us for guidance on this challenging matter. In order to answer your question accurately and ascertain the best course of action for you and your organization, I will first need some pertinent details associated with the nature of the employee’s leave and the terms governing it. Can you tell me the reason cited for the leave and the duration of time that the employee was originally scheduled to be out of work?
Member: Sure. Due to a medical condition, he was scheduled to be out of work for twelve weeks.
MEA Expert: This information is helpful. Was the leave designated in accordance with Family Medical Leave Act (FMLA) regulations?
Member: Yes, we issued the FMLA paperwork, but he has exceeded his entitled twelve-week leave time by four months and has made no effort to contact us or return to work. We are a small company of 55 employees, and his failure to return to work has created a stressful environment for us. I just want to terminate his employment and hire a replacement.
MEA Expert: I understand the impact that his absence may have on your organization. Have you attempted to contact the employee regarding his plans to return to work?
Member: No, I have not. Isn’t it the employee’s responsibility to contact the employer with updates and information?
MEA Expert: That’s a legitimate question, and it’s one that requires us to examine which laws apply in this situation. In addition to FMLA regulations (which applies to companies with 50 or more employees), almost all companies, regardless of size, would also have to comply with the Americans with Disabilities Act (ADA) which mandates that an employer engages in the “interactive process” (a legal term of art under the ADA) in order to determine whether an accommodation may be, or should be, provided, such as leave away from work. An employer must engage in the interactive process, and must make its decision about any accommodation before making decisions about restoring or terminating an employee’s position. Are you familiar with the interactive process and what it entails?
Member: I am not familiar with it. What is it and when was this process supposed to take place?
MEA Expert: The interactive process simply involves the employer proactively contacting the employee and engaging in an interactive dialogue to determine whether or not the employee is able to return to work as scheduled and perform his/her essential job functions. The employee may indicate that he/she needs certain accommodations. Clear, effective, documented communication between the parties is critical to the interactive process. But the most important element of satisfying your legal obligation to engage in this process is that you do it promptly, which means as soon as possible after learning that an employee may need accommodation, such as leave or extended leave. So in your case, you had an obligation to engage in this process as soon as you learned the employee was not returning to work after his 12 weeks of FMLA expired.
Member: Since so much time has elapsed since the leave ended, am I exempt from this process? We’ve already provided an accommodation in the form of four extra months off that we were not anticipating. Isn’t that enough?
MEA Expert: I understand your frustration and desire to move forward, but unfortunately, no action can be taken until the employer demonstrates a good-faith effort to engage the employee in a meaningful discussion about the employee’s ability to return to work.
Member: What do you recommend that I do now to achieve a resolution as quickly as possible?
MEA Expert: Based on the circumstances that you have described, I encourage you to begin the interactive process immediately. Contact the employee through whatever method is most effective – phone, email, typed correspondence. Ask him for a detailed update, and if he indicates that accommodations are required in order for him to return to work, offer a reasonable time frame for him to furnish necessary information or documentation to support his requests. Only after the interactive process has been achieved and all information has been thoroughly evaluated by necessary parties, which may include attorneys and HR professionals, are you able to move forward with terminating the employee if it is determined that the employee’s absence or requests for accommodations are causing your company undo hardships.
Member: Thank you for the advice and guidance. I’ll get started with initiating the interactive process. May I call again with follow-up questions as they arise?
MEA Expert: Of course. We are always one call away and happy to help.
MEA’s goal is to provide current, detailed and useful information to hotline callers, but our responses do not constitute legal advice about what you should or should not do in a particular situation. You should always consult legal counsel, in the context of a confidential attorney-client relationship, before taking any action that could have legal implications for you or your business.