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Holding a position for employee

In the state of Florida how long do you have to hold a job position for an employee who has not been able to work since May 27 and was originally going to be out just a few days?

Whether an employee is entitled to reinstatement after a leave of absence depends upon the applicability of both federal and state laws. Without knowing why the employee is unable to work, we’ll mention a few related laws and factors to consider.

The federal Family & Medical Leave Act (FMLA) entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a 12 month period for specified family and medical reasons. Qualified employees who need to care for a family member who suffered a serious injury during active duty in the military are entitled to up to 26 workweeks of leave in a 12-month period.

An eligible employee is one who has worked for a covered employer for at least 12 months, has at least 1,250 hours of service for the covered employer during the 12-month period preceding the leave, and works at a location where the covered employer has at least 50 employees within a 75 mile radius. Covered employers include those who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year.

In addition to the rights granted to employees under the FMLA, Florida also requires employers to provide domestic violence leave to employees who are victims of domestic or sexual violence. Eligible employees are entitled to take up to three days off in a 12-month period for covered activities.

An eligible employee is one who has worked for an employer for at least three months. The law covers employers in Florida who employ 50 or more employees.

If the employee is not able to work due to pregnancy, childbirth or related medical conditions, the federal Pregnancy Discrimination Act (PDA) prohibits discrimination based on these circumstances. Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay must allow an employee who is temporarily disabled due to pregnancy to do the same. Employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave. Basically, an employer must treat a pregnant employee in the same manner as other temporarily disabled employees are treated in all aspects of employment.

Employers with 15 or more employees must comply with the PDA.

The federal Americans with Disabilities Act (ADA) must also be considered. The ADA applies to employers with 15 or more employees and requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

Under the ADA, an individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment or is regarded as having such an impairment.

Depending upon the reason for the employee’s absence, assuming it’s due to a disability, his condition may be covered under the ADA. If the employee’s absence is due to an injury or illness, even a temporary one, it’s in your best interest to consider if the ADA applies and, if so, what reasonable accommodations can be provided to permit him to perform his job functions and return to work. A short term leave of absence can be considered a reasonable accommodation.

Assuming none of the laws above apply to the situation, another factor to consider is your past practice of providing leaves to similarly situated employees. Such leave benefits should be applied consistently and fairly to all employees in similar situations.

Treating the employee fairly and in compliance with applicable state and federal laws will reduce the risk of a wrongful termination claim.

This entry was posted on Friday, July 17th, 2015 at 6:08 pm and is filed under
Benefits, Labor Laws, Termination.
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