Leave of Absences

Question with lots of in-between questions.

What is the responsibility of the practice to hold a job for extended absence such as pregnancy or major surgery? When they returned, can they be moved to another position? Does the salary have to stay the same? How do key positions such as OM and hygienists fit in this scenario?
What you are referring to is commonly called a leave of absence policy.

I am assuming your business has less than 50 employees so that the FMLA (Family Medical Leave Act) does not apply to you. I am also assuming you did not/have not borrowed or downloaded a handbook policy that inadvertently applied the FMLA rule to you.

Because this subject is so important and there are so many rules, the need for customization for your state and number of employees plays a huge role. This means I cannot give you “the one”  answer that fits all circumstances but I can provide some in depth general guidance.

1) While you are not usually required to grant a leave of absence for things like surgery, injuries, time away to care for a family member and even pregnancy, not having a leave of absence policy is extremely dangerous. The reason is that many lawsuits come out of not treating employees consistently in response to leave of absence requests. You say no to one and yes to another. You allow one employee 6 months for Pregnancy leave and tell another she can only have 2 months. Any of these actions can easily be turned around and used against you in a number of ways.

We most often advise two leave of absence policies.
a) Leave of absence for temporary disability(which covers pregnancy)
b) Leave of Absence, all others.(none disability)

2) Pregnancy as a disability policy and leave of absence often blend together and must be addressed, state by state. Even if you don’t have a fixed period of leave mandated by your state, you still should consider having some reasonable pregnancy leave policy that doesn’t have a discriminatory impact on pregnant employees. ( Do it your-selfers beware!)
Note**** If you have fifteen or more employees the federal government has some rules that apply to all employers with pregnant employees.
Note**** Many states have lowered the 15 employee threshold and have their own rules.

3) It doesn’t matter the position- office manager, associate Doctor, receptionist, Hygienist, the leave of absence policy applies the same across the board for all qualified temporary disabilities. By the way, breaking a leg while on a ski trip is not ordinarily considered a “temporary disability.” Of course, if you work on the ski slope where you broke your leg, we have a different answer.

4) If they have a qualified disability or pregnancy, you should return them to the same or similar position, with the same/similar pay. There may be exceptions for business necessity, like you laid off half your work force at the same time, so there was no position to come back to. But be careful because these decisions (transfers, pay lowering, demotions) are considered employment decisions that can be used to establish a retaliation claim, as much as a termination.

Key things:
1) You are not required to allow for disability leave if you have less than 50 employees.
2) Nonetheless, we advise our members to establish one in their handbook
3) When you don’t establish one and you treat two people differently, it can get you in trouble.
4) When you establish the rule properly, you also get to establish all sorts of parameters that make the entire process easy to administer and protects you and your employees.
5) When you have no rule, you lose all of your protections but your employee continues to be protected.

Visit our website, Center for Employment Dispute Resolution (CEDR) for more information. Questions about this subject can be sent to info@lawsuitfreeworkplace.net or call Paul Edwards directly at 602 476 1418

This information is Human Resource Guidance and is not intended to be legal advice