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Separation of Employment
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Separation of Employment
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
Hello – I am looking for best practices on ending the employment relationship when the employee is on leave of absence (inactive) for 12 months or longer due to long-term disability, personal le
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Forums » Topic Forums » Legal Forum » Separation of Employment
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Separation of Employment
posted at 5/20/2009 8:01 AM EDT
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Posts: 7
First: 5/4/2009 Last: 2/8/2011 |
Hello – I am looking for best practices on ending the employment relationship when the employee is on leave of absence (inactive) for 12 months or longer due to long-term disability, personal leave, educational leave, worker’s comp et cetera.
Do your internal practices vary depending on the type of leave? |
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Separation of Employment
posted at 5/20/2009 8:44 AM EDT
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Posts: 18
First: 5/20/2009 Last: 4/19/2011 |
I would strongly recommend having the policies in place before approving leave for your employees. In my organization, we have different lengths of approved leave for different types of leave. Medical leave, which runs concurrent with FMLA is up to one year. Personal leave is available for very limited reasons and is generally used for employees who do not qualify for FMLA but have need for leave to care for a family member and can be approved up to three months. Worker's Comp should be consistent with state requirements. We do not offer educational leave, but we do offer tuition reimbursement. Regardless of length, the employee is advised of the approved length prior to going out on leave, and once they have exceeded the time limit, they are sent a certified letter requiring their return to work. If they do not have an extension approved, they are terminated for failure to return from leave but are eligible for rehire. |
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Separation of Employment
posted at 5/20/2009 10:27 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
For non-FMLA related absences our policy is to approve 1 thirty day period with a 2nd period available dependent on business needs, seniority, etc.
On FMLA-related absences our policy is to approve the standard 12 weeks and past that is dependent on business needs, seniority, etc. We have never had an employee on leave for more than 6 months who has not then been terminated regardless of the reason. |
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Separation of Employment
posted at 5/20/2009 12:10 PM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
rrupert- I assume you are excluding Workers Comp from your 6 months and terminate rule.
Also everyone needs to bear in mind that if a person is out on disability leave and you terminate them then you have effectively put an end date to all their medical coverage at either 18 or 36 months. At the end of that period they will not be able to obtain coverage particularly if the medical condition that put them out is still ongoing. This can be a very tough issue to deal with. |
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Separation of Employment
posted at 5/20/2009 12:24 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Not every state WC law prohibits termination.
Workers Compensation (in Texas where I am) does not require that you keep an employee working-- of course it is usually better to do so if it is available, but not required past FMLA protection. It would depend on the reason the employee was not returning and how long they were still expected to be out past the times I stated. But then again I also think TX is one of the few, if not the only, states that allows an employer to opt out of WC. |
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Separation of Employment
posted at 5/20/2009 12:49 PM EDT
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Posts: 7
First: 5/4/2009 Last: 2/8/2011 |
Thank you all for the response. But, lets take FMLA, disability, and workers comp out of the picture and talk about an unpaid personal leave of absence.
I think we can all agree that we should not terminate an employee while on a job protected leave such as FMLA unless there is a true business case to layoff. Just an FYI workers comp, unless it runs concurrently with FMLA, has no job protection in any state. And if you terminate an employee while on WC, their treatment or benefits will continue until released to full duty or the organization settles with a lump sum and close the case. I am looking for a policy or best practice on how long organizations will let their inactive employees sit on their headcount while out on a leave after every legal leave job protection clause has been exhausted. |
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