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Jun05

Forced Medical Leave

Is an employer within their rights to force an employee to take medical leave? We have an employee who has been ill for about 8 weeks and has been undergoing tests to determine what is wrong. They have found several ulcers and she is soon to see a specialist and undergo some more tests. In the meantime, she, understandably, has missed a lot of work and has used up all her paid time off. We don’t know day-to-day whether she will be at work or stay the whole day. It has begun to affect business operations. We have others who would be able to cover if we had more notice. Would we be out of line to require her to take medical leave until she has a treatment plan in place and is more stable physically? Thanks for your help in this.

Forcing an employee to take medical leave can lead to disability discrimination claims even when the need for leave may be apparent. Employer’s are within their rights to force an employee to take leave if there is reasonable belief that the employee cannot perform the essential functions of his job. Attendance is often considered an essential work responsibility. Additionally, if an employee is a safety risk to himself or others an employer may prohibit the employee from working until he can provide medical clearance ensuring he can perform his job duties.

A better option in this situation may be to meet with the employee to discuss the excessive absences and explain her options including a medical leave. Inform the employee of the concerns regarding her attendance and her eligibility for leave, whether the leave is covered by state or federal law or company policy. Encourage the employee to use her eligible time to deal with her medical condition. Keep in mind employees are within their rights to decline a leave unless the employee poses harm to himself or others. If the employee refuses to take leave employers may impose disciplinary actions for future absences in accordance with company attendance policies.

It’s important to be aware of applicable laws on this matter such as the Americans with Disabilities Act (ADA) and the Family & Medical Leave Act (FMLA) as well as possible state laws.
The ADA prohibits discrimination against an individual who can perform the essential functions of his job with or without reasonable accommodation. It’s a fair belief that attendance is an essential part of an employee’s work responsibilities. Thus, it can be assumed that an individual who must be present to do their job would not require accommodations and can be subjected to disciplinary actions for attendance issues. However, if attendance is not a true essential job function i.e. the employee can work from home then reasonable accommodations under the ADA may be required. A reasonable accommodation can include a job restructuring, leave, or modified work schedule.

The FMLA entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job protected leave in a 12 month period for specified family and medical reasons. The leave may be taken all at once or on an intermittent or reduced schedule basis. Employers are able to force employees to take FMLA leave but in doing so the employer runs the risk of having to back up its decision in court. Applying the FMLA in this manner is a very gray area, especially if the employee eventually exhausts leave entitlement and is terminated.

As suggested above, start by talking with the employee and proceed cautiously. Remember to document every conversation and retain records of any letters/memos regarding the matter.

This entry was posted on Thursday, June 5th, 2014 at 2:01 pm and is filed under
Human Resources Management, Labor Laws.
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