Can I terminate an employee who does not return from leave?
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 Legal and Compliance Team. 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” answer that applies to every situation. 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. MEA is 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 typical 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. Can I terminate his employment?
MEA: Thank you for reaching out to us for guidance on this challenging matter. To answer your question accurately and determine the best course of action for you and your organization, I first will need some pertinent details regarding the employee’s leave. What is the reason cited for the leave and the duration of time that the employee was originally scheduled to be out of work?
Member: Due to his own medical condition and treatment, the employee originally was scheduled to be out of work for twelve weeks.
MEA: This information is helpful. Was the leave designated as Family and Medical Leave Act (FMLA) leave in accordance with FMLA regulations?
Member: Yes, we issued all necessary FMLA paperwork, but the employee 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 would like to terminate his employment and hire a replacement.
MEA: 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: That’s a legitimate question and one that requires us to examine which laws apply in this situation. In addition to the FMLA (which applies to companies with 50 or more employees), almost all companies, regardless of size, must comply with the Americans with Disabilities Act (ADA) (or the state law equivalent of the ADA), which requires employers to engage in an “interactive process” (a legal term of art under the ADA) to determine whether the employer can provide a reasonable accommodation that will allow the employee to perform the essential functions of his or her job. In some cases, a leave of absence may constitute a reasonable accommodation. 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: In the case of a leave of absence, the interactive process requires the employer to contact the employee and engage in a back and forth dialogue to determine whether the employee can return to work and perform his/her essential job functions. As part of that process, the employee must provide information regarding his or her condition and requested accommodation(s). 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 an accommodation. In your case, therefore, 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: I understand your frustration and desire to move forward. In this circumstance it would be legally risky for you as an employer to take any action until you demonstrate 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: 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 or letter. Ask him for a detailed update. If he states that accommodations are required to allow 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 completed and all information has been thoroughly evaluated by necessary parties (which may include attorneys and HR professionals) will you be able to move forward with terminating the employee, if you ultimately determine that the employee’s absence or other requested accommodation would cause undue hardship to your company.
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: 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.
Editor’s Note: This post was originally published in June 2016 and has been updated for accuracy and comprehensiveness.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.