Are we required to hold a position?
drake56
1 Post
I am an employer in NJ and I have an employee who has been on Short Term Disability. It has now been over 90 days and we have not heard any word when the person might be coming back to work. We are a company of 35 people and I know since we are not 50 or more employees we do not fall under FMLA. Are there any laws in NJ that require we keep the position open for this person?
Please help!
Thank you
Comments
While I agree with HRsgf that you might need to take ADA into account, most courts have found 90 days to be more than reasonable accommodation. And it is pretty easy for a company to argue "undue hardship" for an employee being out more than 3 months. The employee must be able to fulfill the essential elements of the job ....and usually attendance can be argued to be essential (especially after 90 days).
The following only applies if the person actually falls under the ADA/disability definitions.
However from : http://www.eeoc.gov/policy/docs/fmlaada.html
"In some instances, an employee may request more leave under
the ADA even after the employer has communicated that it
cannot hold the employee's job open any longer (i.e., there
is undue hardship). In this situation, the ADA-covered
employer must see if it has a vacant, equivalent position
for which the employee is qualified and to which the
employee can be reassigned without undue hardship to
continue his/her leave. If an equivalent position is not
available, the employer must look for a vacant position at
a lower level. Continued accommodation is not required if
a vacant position at a lower level is also unavailable."
I wish I had a direct link to the following case, but it is saved on my harddrive rather than a bookmark. This is a relatively new decision so I am not finding it in Findlaw. It's a very interesting read and discusses FMLA interaction with ADA. In this case, the plaintiff DID fall under the FMLA but the er terminated after he had used all 12 weeks in multiple years.
From Payne vs Fairfax County (IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division)
“In addition to possessing the skills necessary to perform the job in
question, an employee must be willing and able to demonstrate
these skills by coming to work on a regular basis.” Tyndall, 31
F.3d at 213 n.1. A regular and reliable level of attendance is
an essential function of one’s job. Halperin v. Abacus Tech.
Corp., 128 F.3d 191, 199 (4th Cir. 1997); Lamb v. Qualex, Inc.,
33 Fed. Appx. 49 (4th Cir. 2002); see also Carr v. Reno, 23 F.3d
525, 529 (D.C. Cir. 1994)(holding that “coming to work regularly”
is an “essential function”); Jackson v. Veterans Admin., 22 F.3d
277, 279-80 (11th Cir. 1994)(holding that an employee with a
history of sporadic unpredictable absences was not otherwise
unqualified); Law v. United States Postal Serv., 852 F.2d 1278,
1279-80 (Fed. Cir. 1988)(holding that a regular and reliable
level of attendance is a necessary element of most jobs). Thus,
an employee who cannot meet the attendance requirements of his
job cannot perform the essential functions of his job, and
therefore, cannot be a “qualified individual” under the Americans
with Disabilities Act."
When your employee went out on STD did you require him/her to check in with you on a regular basis to keep you updated? If you sent the employee a letter explaining the STD benefits, you should have also informed them of their duties. If you gave them this requirement and they did not follow it, you have the right to discipline the employee which could include termination.