Human Resource Blog

Mandatory Leave of Absence

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Can an employer force an employee to take a mandatory leave of absence even if the employee refuses to take it or seek medical treatment?

There are really two questions here. Can an employer force an employee to take a mandatory leave of absence? And, Can an employer force an employee to seek medical treatment?

Can an employer force an employee to take a mandatory leave of absence? Yes, in many cases the employer can. There are basically 3 types of leave of absence.

-          A leave of absence requested by the employee

-          An administrative leave of absence, usually paid

-          A disciplinary leave of absence, usually unpaid

A leave of absence requested by the employee would broadly include unpaid FMLA leave, or leave under ADA. Obviously, that’s not the case here. An employee can’t be put on ADA or FMLA leave without his or her consent, normally.

An employer may force a worker to take an administrative leave of absence. An employee is often put on this type of leave when the employee’s presence at work creates a public relations problem, or during an investigation. Usually this type of leave is paid, but the employer can make it mandatory, even if the employee would rather be at work.

Police officers are often put on paid administrative leave after discharging their weapon on the job, until an investigation can be completed.

An employee may be put on paid leave while the company investigates charges of sexual harassment or illegal discrimination in the workplace. Generally, the employee must be paid because the allegations have not been proven. However, often having the employee in the workplace during the investigation can be disruptive.

An employee may also be put on paid administrative leave for issues that have nothing to do with job performance. Suppose Mark’s estranged wife disappears under suspicious circumstances. Mark has not been arrested or charged with any crime, but many news reports suggest that he has murdered his wife. Mark’s employer may prefer not to be associated with this type of publicity, and may put Mark on paid administrative leave for a time.

In a more positive scenario, if an employee became engaged to marry a member of the British royal family, it’s likely that reporters and photographers would dog the worker’s every step. This could well prove disruptive, and might result in the employee being put on administrative leave with pay.

By contrast, disciplinary leaves of absence are usually unpaid. In this case, an employee is suspended without pay for one day, three days, a week or longer, as a punishment for violating company policy. Suppose the investigation of a claim of illegal discrimination shows that Jane did tell a joke about a particular ethnic group. It was a one-time occurrence and the employer doesn’t think that Jane deserves to be terminated. The employer might suspend Jane for three days without pay.

As a disciplinary measure, suspension (which is what an unpaid leave of absence is) is more serious than a written warning, and less serious than termination. The implication is usually that any further violation will result in termination.

Can an employer force an employee to seek medical treatment? No, they cannot. And it’s important that a leave of absence not be used to force the employee to act in that way. In part that’s because under ADA, an employee with a disability has to be treated like any other worker, unless they specifically ask for an accommodation.

Employers are not empowered to force workers to seek treatment for a mental illness, or for a drug or alcohol problem. Nor can they force employees to stop smoking, cheating on their spouses, overeating, avoiding the gym or cheating at solitaire. Those are personal liberties guaranteed to every person under the constitution. (Nor can workers force employers to reform in these ways.)

When dealing with an employee with a drug or alcohol problem, or a mental illness, it’s important that the employer address the employee’s BEHAVIOR, and performance in the workplace and not the presumed diagnosis.

It would be illegal discrimination under ADA, the Americans with Disabilities Act, for Tom’s boss to put him on a leave of absence because Tom was an alcoholic.

However, it would be entirely appropriate for Tom’s boss to suspend Tom without pay, or write him up, for missing 5 days of work in 2 weeks (provided that is the action that Tom’s boss would take if another employee who was not an alcoholic behaved the same way.)

The key factor here is that the employer needs to address the performance problem, not the employee’s diagnosis or condition.

In some cases, it might be appropriate for an employer to offer an employee a choice between termination and treatment. It might be appropriate to say, “Tom, normally we terminate an employee who has this many absences in such a short time. However, if you were in treatment for alcoholism or drug addiction, or another serious health condition, these absences could be covered under FMLA or ADA. Would you be willing to get such treatment?”

Sometimes being presented with such a choice is the impetus that an employee needs to seek treatment.

However, it is probably not appropriate for an employer to say, “Tom, I’m going to put you on an unpaid leave of absence until you go to rehab.”