Dilemma: How Long to Hold a Job Open?

Occasionally, employees want or need to be away from work after they have used up all their accrued vacation, paid sick leave, and paid personal time off. For example, an employee may be out collecting Workers' Compensation benefits for months, even a year or more. So, you need to let employees know the circumstances under which they may take unpaid leaves, how long you may hold a job open, and when employment terminates. Here's an example of a dilemma an employer might face.

Question: "One of my employees used up all his vacation and sick leave. Then he got injured, filed a Workers' Comp claim, and is off on Workers' Comp leave. It doesn't look like he'll be able to return anytime soon. How long do I have to hold his job open? I'd like to terminate him since he wasn't a very good employee, anyway."

Don't even consider terminating an employee because the employee filed a legitimate Workers' Comp claim. But this situation spotlights the need to have a policy which guides you when employees need extended leaves.

The moment an employee even hints he or she is considering filing a Workers' Comp claim, or actually files one, move gingerly and slowly regarding any termination. If you do terminate, make sure you can clearly document the reason for termination has absolutely nothing to do with the Workers' Comp claim -- often this is difficult to do.

The question raises a much broader topic: How does an employer deal with extended leaves?

Employees want extended leaves because of a Workers' Comp-covered injury or illness, for other medically related reasons and for family and personal emergencies. Occasionally an employee may want an extended leave to pursue an educational or career-development opportunity.

So you'll want a broad policy telling your employees when, and under what conditions, they qualify for an extended leave of absence.

These are some of the questions you need to answer, to decide what your policy will be:

1. Which employees are eligible for unpaid extended leaves? Will you limit extended leaves to your essential or valued employees? How do you define them?
2. Must employees receive approval for unpaid extended leaves?
3. What's the maximum length you will grant for an extended leave? Six months? Nine months? A year?
4. What about pay and benefits? Are employees on extended leave eligible for any pay? How much? For how long? When do they lose benefits?
5. What are the re-employment rights once the employee returns from leave?
6. At what point, and under what circumstances, will you terminate the employee?
7. Which state and federal laws affect what you do? (For example, state Workers' Comp laws, pregnancy and maternity leave laws, continuation of benefits laws, and federal and state Family and Medical Leave laws, the Americans with Disabilities Act, and COBRA laws may affect your extended leave policy and the employee's rights for or during extended leave. Note also: Some state laws limit or prohibit the employer from terminating an employee who is on leave from work because of a Workers' Comp claim.)

Keep in mind that the Americans with Disabilities Act (ADA) protections must be applied broadly to covered applicants and employees.

The ADA (as amended by the 2008 ADA Amendments Act) broadly defines disability to include - not just a current, obvious disability - but also an "impairment that is episodic or in remission... if it would substantially limit a major life activity when active." The term disability also extends to persons regarded as having such an impairment. An applicant or employee is regarded as having such an impairment if the "individual establishes that he or she has been subjected to an action prohibited under this Act [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

The amended ADA defines major life activities broadly to include such activities as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, learning, reading, reaching, interacting with others. Major life activities also include such major bodily functions as breathing, immune system function, digestive and bowel function, and bladder, musculo-skeletal, and brain functions.

Examples of disabilities covered under the expanded disability and major life activities definitions include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.

ADA obligations apply to private employers with 15 or more employees. Covered employers need to train supervisors to broadly extend ADA protection to applicants and employees. Individuals must be evaluated according to their qualifications... not their disabilities.