Caution! Employees Not at Work

Although there are many occasions when an employer may lawfully terminate a non-performing or absent employee, if the reason for the non-performance or absence is based on a physical or mental condition – or a perceived physical or mental condition – employers are well-served to carefully scrutinize the facts before deciding to terminate an employee.  Here are a few examples of where further scrutiny is well worth the effort:

 Employees not at work1.  Where the basis for termination comes only from a single source.

Assume, for example, that a line manager recommends the termination of an employee because she is “unreliable.” In reality, and unbeknownst to the employer, the line manager actually wants the employee fired because he feels inconvenienced by having to cover her authorized, intermittent leave hours.  If the employer takes the line manager’s word that the employee is simply “unreliable” and terminates the employee taking intermittent leave, the employer will potentially be liable for disability discrimination or a violation of the Family and Medical Leave Act.  Thus, when the basis for making an employment termination decision comes only from one person, in-house counsel should advise the company to do whatever it can to verify the facts through one or more alternative sources.

 2.  Where an employee does not immediately return from a leave to which she/he is entitled by statute.

Once the leave period set forth in the Family and Medical Leave Act, the Massachusetts Maternity Leave Act or some other statute has expired, employers may be tempted to terminate employment if the employee does not immediately return to work.  Don’t do it!  In some instances, an extension of the statutory leave period may be considered a “reasonable accommodation” for a qualified disability.  Thus, in-house counsel should advise employers to find out why the employee is not returning to work and assess whether the employee would be entitled to a further leave of absence or whether the employee is able to return to work but simply quit.

3.  Where an employee is denied or has exhausted disability insurance for a medical condition.

Not infrequently, employers decide to terminate an employee because the employee has been denied or has exhausted short-term disability insurance coverage, or has exhausted paid vacation time or paid parental leave.  In-house counsel should make sure that their clients do not confuse an employee’s entitlement to return to work after a medical leave, with the employee’s entitlement to compensation for that leave.  Even if the method of compensation available during a medical leave has expired or is not applicable, the employee may still be entitled to be absent for a longer period of time and return to work, although perhaps without pay.

While there certainly are situations where termination decisions have to be made and implemented quickly, in-house counsel need to advise their clients when taking a little more time to investigate and evaluate a preliminary decision to terminate is in the company’s best interests.  Doing so can eliminate the potential for mistakes that can lead to big liability.

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