Friday, September 23, 2011

When the FMLA does not apply...making the hard decision the right way.

Imagine you have 40 employees and operate a vocational training school.  One of your employees who has worked with you for a year advises you that her son needs a kidney transplant; that she is a match as a donor; and that she would like a leave to undergo surgery.  She said the doctors have told her that her recovery time will be between 6-8 weeks?  Can she have the time off and come back to her job?  You now wish you had finished the leave of absence policy that you had been thinking about.

Apparently, it is at this point that the real life situation with similar facts began to go wrong.  According to media reports,  a supervisor initially told the employee she could take the leave and return, but an hour later, the supervisor presented a letter that the employee had to sign acknowledging that her job was not secure and that if she did not sign it, she would be considered to have quit.  She signed the letter and had the surgery.  After approximately 8 weeks, she returned to find her job had been filled.  A media frenzy ensued, and the employer then announced that it was reinstating her salary which would be paid until another position became open.  At that time, she could re apply and be considered for the position.  A supervisor explained the company's position.

How should an employer respond to such a request?  If there is a leave of absence policy, the employer should apply it to the facts.  In any event, the employer has to consider the position to be left vacant; whether other employees can cover the functions without sacrificing their work; whether the duties could be performed by a temporary employee; the length of the leave; and the overall impact on the employer's operations.

As to the leave policy itself, it should address the circumstances under which it applies; any eligibility requirements; circumstances when it is and is not available; and the amount of notice to be provided by the employee.  The key is ongoing communication.  Obviously, telling an employee that his or her job will be held open and then reversing that decision without explanation is going to cause problems.

Employers are often criticized for being "heartless."  There is the economic reality that in these difficult times, staffing is often at minimum levels.  Unexpected, prolonged absences can have an immediate, adverse impact on the operations.  Losing an employee for 6-8 weeks is no small matter.   Ideally, a satisfactory accommodation can be reached, but this is not always possible in all cases.  The 50 employee threshold of the FMLA was established in recognition that smaller employers simply do not have the resources to absorb long term absences without making a staffing decision.  The key is communication and an genuine attempt to reach an accommodation, even if unsuccessful.

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