With the arrival of summer, most of us are enjoying the sunshine, flowers, cool breezes, picnics and those much-anticipated vacations. As employers, we balance the day to day operation around staff rotating through their vacation schedules and manage the coverage gaps accordingly. Unfortunately, at the same time, employers often see a higher incidence of issues with some employees who do not manage vacation periods well. This includes more issues with absenteeism, quitting their jobs, no call/no shows, not returning on time from a vacation (including leaves) or other types of work attendance or schedule compliance problems. This frequently occurs when individuals are unable, or unwilling, to return from a personal leave, an FMLA period, vacation or other kind of leave. While ever more frequent during warm sunny months, it does occur year-round, but we traditionally note an uptick in these types of claims during the summer. If not managed properly, these issues can contribute to unwarranted and increased unemployment costs.
The unemployment statutes and regulations governing each state are separate and distinct from individual state maternity laws, the FMLA (federal), the Americans with Disabilities Act (ADA), discrimination laws, wrongful discharge case law and various ever-expanding statutory mandates and regulations currently in existence. Although an employer may be compliant with one or more legal obligations under any number of laws, that does not necessarily or often relate to a strong unemployment compensation case. In fact, there are numerous laws actually in conflict with unemployment standards or other laws. Dealing with the same set of facts may result in differing consequences and determinations, both pro and con, when applied to each individual law. This has been an issue when addressing unemployment laws when it comes to an employee’s ability to return to work following an approved leave of absence or vacation.
A common scenario occurs when an employee is on an approved leave (or vacation) from the employer. The company has complied with all their legal requirements and have held the employee’s job, pay, etc. open and available for the employee upon the expiration of the leave. The employee however tells the employer they are still unavailable to return from the leave. The employer calls their labor attorney who advises management the company has fulfilled all of their legal requirements under the law, so they can let the employee go. Confident in the attorney’s advice, the employer terminates the employee accordingly. The employee then files for unemployment compensation, submitting a letter from the employer to the local UI agency saying they were let go because they were “unable to return from a leave of absence”. The company thinks they have an open and shut winner but are shocked to receive a determination awarding benefits to the former employee. What happened?
While each state varies slightly, when an employer initiates a separation of employment, as they did in the example cited, it must be for misconduct. Someone’s inability to return from a leave is not misconduct or a violation of policy. Good ways to improve the case to defend against unwarranted charges and assist the employee in maintaining their employment are as follows:
- Make sure to offer the claimant some other job, within any possible light duty restrictions a doctor may have imposed
- Offer an extension to the leave to a given date (closed end). Speak with the employee to determine a realistic and workable date and request additional documentation as necessary
- Require the employee to undergo an IME (independent medical exam)
- Consider laying them off subject to recall if the circumstances are appropriate
It is important to remember, just because the individual may not be able to return to the full time work they previously performed for your organization, does not mean they are not “able and available for full time work” in another job capacity. It only means they weren’t able to return to their previous full-time job with your organization. Unfortunately, we do see claimants “venue shopping” in terms of claiming availability and fitness for duty, where unemployment is concerned but making opposite assertions where disability or workers’ compensation is sought. Where statements conflict and they are available to the employer, it is prudent to obtain these documents for use to contest unemployment claims.
Leaving Lines Open
The most effective tools to safeguard an employer from unjustified claim payments is to keep good records and lines of communication open. We have seen employees take three-week vacations, when they were approved for only two and argue they “thought” they had three weeks. All return to work dates should be in writing. Beginning and end dates should be communicated. There should be a written and enforced requirement for notifying the employer if something unforeseen happens while out on vacation. If it is a leave period, employers should include language, prior to the beginning of the leave, setting forth the employee’s responsibilities if they are unable to return (HR notification, doctor certification, management communication, etc.).