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Terminating an Employee on Leave

I have an employee that was involved in an auto accident on May 25, 2017. She returned to work but on June 6th said she was unable to work and has been collecting NYS Disability since. She provides very little information regarding her disability. It is my understanding that she was released to return to work 3 weeks ago but has made no attempt to contact me and has not provided any information since Aug 20th per my request. What are my options as an employer?

NYS disability insurance pays a portion of an employee’s salary for a specified time frame if he/she is unable to work due to a non-work related injury or illness. Coverage doesn’t necessarily protect an employee’s job. However, there are federal that may protect the employee’s job.

The two federal laws to consider are the Family & Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Some states have similar leave and discrimination laws but NY is not one of them.

The FMLA entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons.

The FMLA applies to public agencies, including State, local and Federal employers, and local education agencies (schools); and, private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

Eligible employees include those who have worked for the covered employer for at least 12 months; and have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and, work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

If the employee is covered under the FMLA, it would be illegal to terminate her employment. Once the employee has exhausted her 12-week FMLA leave entitlement or she’s not eligible for FMLA coverage then the ADA must be considered.

The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

It’s the employer’s responsibility to determine if an employee has a covered disability under the ADA. If so, it’s also the employer’s responsibility to engage in an interactive exchange of information with the employee to determine what, if any, reasonable accommodations can be made to allow the employee to perform her job. A short term leave of absence may be considered a reasonable accommodation under the ADA. Even if an employee has taken 12 weeks of FMLA leave, an employer may still be required to provide an additional short term leave of absence if the employee is expected to return to work soon after their FMLA entitlement has been exhausted.

Failing to follow the interactive process in determining whether a reasonable accommodation exists, assuming the employee is covered, would be a violation of the ADA. If the employee refuses to take part in the interactive process (i.e. she is not communicating with you or refuses to provide the necessary documentation), then she is not entitled to an accommodation.

Let’s say neither the FMLA nor ADA applies. In this case, it’s ultimately up to you to determine whether the employee is entitled to leave. At this point, it sounds like the employee has taken over 3 months of leave so there is some implication that you’re holding her job. Was there any conversation with the employee about how long her position will be held or when the employee is expected to return? Do you have a policy or past practice of holding an employee’s job while he/she is on STD or LTD? Consider what, if any, promises you’ve made to the employee, even implied ones, and adhere to them. It’s also best to consider any leaves you’ve provided to other similarly situated employees in the past. Treating the employee fairly and in consistency with past practices is best.

With all that in mind, also consider what attempts you’ve made to communicate with the employee. One phone call a month ago isn’t sufficient. Call her. Email her. Or, even better, send her a certified letter stating the amount of leave time she’s already been provided and that you expect her to contact you to discuss her return to work. Give a specific timeframe for her to call you. If she still doesn’t contact you within that timeframe send one more letter confirming your attempts to reach her to discuss her return to work. Be clear that if she fails to communicate with you then you will consider her to have abandoned her job. This may sound excessive but it’s best to make every attempt to contact the employee prior to terminating her.


September 21st, 2017, 3:03 PM |  Posted in: Labor Laws, Termination |
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Vacation/Sick Time Usage & FMLA

We are an employer based in New Jersey. We have 65+ employees. If any employee goes out on FMLA, what is the maximum amount of sick and/or vacation time that we could apply to run concurrently with their FMLA usage? Thank you.

There are two leave laws for employers in New Jersey to consider: the federal Family & Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA). The laws are fundamentally equivalent with a few differences in the details. An eligible employee is entitled to 12 weeks of unpaid leave in a 12 month period under the FMLA and 12 weeks of unpaid leave in a 24 month period under the NJFLA. Since both laws provide leave for many of the same qualifying conditions, it’s common for an employee to be using leave time under both laws simultaneously.

Both the FMLA and NJFLA only require unpaid leave. However, both laws permit an employee to elect, or the employer to require the employee, to use accrued paid leave (i.e vacation or sick time), for some or all of the leave period. When paid leave is substituted for unpaid family or medical leave, it may still be counted against the 12-week FMLA or NJFLA leave entitlement if the employee is properly notified of the designation when the leave begins.

There is no legally mandated cap on the amount of accrued paid leave time to be used while an employee is on FMLA/NJFLA leave. Some employers choose to implement caps on the amount of sick time to be used while on leave. The usual reason for such a policy is to encourage employees to use their sick time when they’re actually sick throughout the year instead of banking such time to use at a later date. Such a policy is at the discretion of the employer and must be properly communicated to employees.

September 21st, 2017, 2:45 PM |  Posted in: Benefits, Labor Laws |
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I have an employee who was on FMLA approved leave from 6/20/2016 until 9/9/2016. In April of 2017, she requested another leave. As she only had a few days remaining of her 12 weeks in 12 month period, I granted the leave as 3 days Family Leave and the remainder (April 24-July 4) as an approved, unpaid personal leave (per company policy). This employee is now out again since September 1, 2017 and is requesting leave. Our company uses the 12 month rolling method. My question is: the employee was on leave for 10.6 weeks (April-July 2017) in the 12 month rolling period, but it was not FMLA because she had exhausted her allocation…As I consider the current request, should the 10.6 weeks from April-July count towards her 12 weeks in this 12 month period, or does it not count because it wasn’t qualified as FMLA? Thanks

The federal Family & Medical Leave Act (FMLA) entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave in a defined 12-month period for certain family and medical reasons. Employers may select one of four options to establish the 12-month period: the calendar year, any fixed 12 months, the 12-month period measured forward, and a rolling 12-month period measured backward.

Using the rolling 12-month period measured backward method is the most common but also the most confusing. Under this method, the 12-month period is measured backward from the date the employee uses any FMLA leave. Each time an employee uses FMLA leave, the remaining leave entitlement is the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

In this case, the employee requested FMLA leave to begin on September 1st. So, you would look back from September 1, 2017 to August 31, 2016 to see how much FMLA leave was used. Non-FMLA leave time is not counted against an employee’s FMLA leave entitlement.

September 21st, 2017, 2:19 PM |  Posted in: Labor Laws |
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PTO upon Separation

If an employee quits and doesn’t provide the required notice, do they still get their unused accrued PTO time or can it be withheld?

Paid time off (PTO) benefits are not regulated by federal law. Some states, most notably California, consider accrued PTO to be equivalent to wages; thus, any unused accrued time must be paid awarded to employees. Other states simply require employers to abide by the terms of their established policies or practices.

Absent state law or collective bargaining agreement, whether unused accrued PTO is to be paid to employees upon separation of employment is a matter of company policy. Some employers opt to payout such time to all employees upon separation while other employers impose restrictions on the payout (i.e. employees must provide sufficient resignation notice). It’s best for employers to establish clear policies on the matter to ensure employees are treated uniformly and fairly.

September 21st, 2017, 2:05 PM |  Posted in: Benefits |
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Hire Date on Form I-9

What date is used for the employee’s first day if the acceptance of a job offer is prior to the actual hire date?

Many employers include both a hire date and start date in employee records. Usually, the hire date is when an employee accepts a job offer while the start date is when an employee actually begins working in his/her position.

However, for the purpose of completing Form I-9, the hire date means the first day the employee works for pay. When the employee accepted the job offer has no bearing on the completion of the I-9. Employers must complete and sign Section 2 of Form I-9 no later than the third business day the employee works for pay.

September 18th, 2017, 7:20 PM |  Posted in: Hiring and Staffing |
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