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Leave
by Dr. Lynne
Curry
Question:
Five weeks ago, one of our employees asked us for a several-week
leave of absence, saying she needed to "get her head
together." We asked her how long she’d be gone for and she
told us she didn’t know but "didn’t think it would be too
long." When we asked her for a guestimate, she said,
"Well, anywhere between three weeks and two months."
We told her that
we could grant her two days of paid sick leave and eight days of
leave without pay, but that if she wasn’t planning to be back by
the end of two weeks we couldn’t leave her position open. She
got pretty confrontive, telling us we "had her over a
barrel" because she needed the money and didn’t want to
lose her job. She said that she didn’t think we had a right to
ask her questions like "how long?" and "what
for?" and that giving her the time off wouldn’t cost us
anything if we weren’t paying her.
We told her we
asked her the questions out of concern for her and didn’t mean
to pry. We also said it did cost us in terms of the impact on
other employees and customers when any employee was absent. She
was pretty upset and left without saying anything other than that
she’d be back within two weeks.
Well, she wasn’t
and she didn’t answer her phone when we called her after the two
weeks was up. We found her personal hotmail address and sent her
an email that she didn’t respond to and also mailed a certified
letter to her home address that she didn’t pick up. We’d have
called the police out of concern for her but one of our employees
frequents the restaurant where this employee moonlights at night
and said she’s still at her night job.
When we heard
this, we advertised her position and hired a new person, who’s
working out wonderfully. Now, we’ve just received a hostile
letter from this employee saying she took off work to recover from
a traumatic event she didn’t feel she had to disclose and that
she thus qualifies for paid disability leave and demands
reinstatement or severance. She also states in the letter that she
clearly specified she had mental health issues to deal with and
that we violated her right to privacy by intrusive questions. She
was a pretty marginal employee and we’d rather keep the employee
we hired to replace her. Do we need an attorney? We’d rather not
rack up a legal bill.
Answer:
While your employee appears to have walked off the job,
whenever you deal with an angry current or former employee who
appears to hold an unreasonable point of view and says you
violated her rights, you may need an attorney. In your case, you
face an employee who raises issues that might fall under the
Americans with Disabilities or Family and Medical Leave Act (if
your company employs more than 50 employees).
For example, if
your employee manages to convince a neutral third party that
"getting one’s head together" counts as a mental
health disability, you may be in for a legal surprise. According
to the federal Equal Employment Opportunity Commission employer
advisory guidelines, mental impairments that last for more than
several months and significantly restrict concentrating and
interacting with others may constitute disabilities. By law,
employers need to accommodate employees with mental health
disabilities.
Luckily, however,
your former employee may have shot herself in the foot by how she
handled her situation. While Congress set up the ADA and FMLA Acts
to protect those in need, the Acts offer employers protection as
well. According to workers compensation attorney Deirdre Ford,
"Employees who want disability or family medical leave must
provide their employer with enough information to ascertain that
there is a serious health or mental health condition. In this
case, the employee would have to convince a neutral third party
that saying she needs time to "get her head together"
qualify as giving you reasonable notice."
Since you made
many efforts to contact your employee and she apparently evaded
them while managing to show up at her evening job, you appear to
have a strong case that you replaced her because she left you no
realistic choice. Before you can consider yourself out of the
woods, fully document these circumstances and make every effort to
remember the questions you asked her. If you feel you stepped over
the line with your questions, or in any way acted unfairly, you
may still want to contact an attorney.
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