Kellie G. Olah, SPHR, CVPM, SHRM-SCP
As a practice owner or manager, it’s probably been engrained in you that you can’t terminate someone’s employment after they take medical leave. The reality, though, is more nuanced with judges backing up the firings under certain circumstances.
What type of circumstances qualify? Well, picture this situation. You’ve got a full-time, tenured technician; let’s call her Lia. She has worked at your practice for five years, but her performance has been poor. She doesn’t arrive to work on time. When she does get there, she’s snippy with her coworkers and, overall, she doesn’t act like a team play. At the end of the evening, when other employees clean up, she’s always got a reason why she can’t stay to help.
Then let’s say this situation plunged from bad to worse. Lead technician Sam made a request. Instead of complying or asking questions about the request, Lia snapped back at Sam and then walked away. So, Sam went to talk to the practice manager, sharing what had just happened.
The practice manager, aware of the multiple warnings they’d already given Lia—including a final one before termination—reviewed her file. The manager confirmed that they’d gone through proper procedures and needed to fire Lia.
The next morning, however, Lia—who wasn’t yet aware of the decision to terminate her employment—informed the practice manager that she’d been hospitalized after an accident. She wanted to take the medical leave that employees are offered in the practice’s manual. Lia qualified for the leave; the practice manager approved the leave; and then, before Lia was returning to work, the practice terminated her employment for reasons stated in her employee file, effective at the end of the leave.
Is this appropriate?
The short answer is that, yes, it is. In this situation, the practice had taken the appropriate steps to terminate Lia’s employment. It’s also true that the employee manual provided up to six weeks’ worth of medical leave under the appropriate circumstances—and Lia’s accident qualified. They’d followed the relevant processes and procedures of the company.
In a similar case, both a trial court and the relevant court of appeals concluded that the actions taken by the employer were acceptable. First, the place of employment did not fire the employee because of the leave that the person was entitled to. Although, general speaking, the employee would return to work after the leave ended, this is not applicable if the employee would have lost their position regardless of the fact that they’d taken a medical leave.
Although retaliatory firing is not permitted, there is not the required evidence to show that this occurred. In other words, the fact that these two events—the employer deciding to terminate an employee and the employee asking to use the medical leave time—were closely related, timewise, this was not enough to conclude they were connected.
This raises another question. Because the practice manager already knew that the practice planned to fire Lia, could the business have denied the medical leave in the first place? Well, that’s not the case heard and appealed, so how a court would rule on that type of situation isn’t certain. More case law may need to be established before the answer becomes more definitive.
What we do know: Granting the leave in spite of the circumstances made it more clearcut for the practice and would almost certainly have made the practice’s actions more defensible in court.
Takeaways for Practice Managers
In our example, the two events focus on the same employee but are otherwise unconnected. In other words, one didn’t cause the other. This isn’t a case of cause and effect.
The practice manager could demonstrate that fact because the practice had kept good human resource-related records. It could be proven, then, that Lia had an ongoing pattern of being disrespectful, including that she’d already been given a final warning. So, when Sam shared what had happened between the two of them, the practice manager had a solid foundation on which to make her termination decision.
In addition, the fact that medical leave policies of the practice were clearly spelled out in the company manual made it easy for the practice manager to know what Lia would typically be entitled to as a practice employee. By granting Lia the leave in spite of the impending termination, this simplified the practice’s ability to justify the manager’s action if such justification would be needed in court.
In sum, the practice manager could justify why Lia was fired and demonstrate how it was going to happen in ways that weren’t connected to the accident and subsequent leave. If such an event happens at your practice, having an attorney review the facts can further protect your practice.
Sidebar: Making Reasonable Accommodations
This is far too big of a subject to cover comprehensively in a sidebar. So, in this one, we won’t focus on FMLA or on providing ongoing accommodations for an employee with disabilities. Instead, we’ll just put attention on when an employee needs a medical leave of absence. This can be because of significant illness or surgery—or, in the case of our example, when Lia’s accident sent her to the hospital.
The American with Disabilities Act (ADA) requires that employers facilitate the ability of employees with disabilities to do their job through providing them with accommodations—although not to the degree that this places an undue burden on the company. As of July 26, 1994, companies with fifteen or more employees must follow ADA guidelines. As they craft their policies, they can offer more than what the ADA requires but not less.
Returning again to our example, the practice’s employee manual broadly provided for time off that fit Lia’s circumstances. Thus, the manager granted leave.
Deciding how to describe what your practice will provide for medical leave and other accommodations can be a complex process, one where it makes sense to have an attorney involved.
