I’d much rather write about a legal topic than a personal one, but before I talk about the logistics of handling an employee who has exhausted their paid time off, I wanted to share a brief personal update.
Last November, I shared with you my wife’s diagnosis and treatment for cancer. Because she is a fairly private person, I haven’t really posted an update since. I’m pleased, however, to report that my wife has recovered well from surgery and the original cancer diagnosis. We are now in the stage where you wait for each followup scan with a bit of anxiety — never quite feeling comfortable enough to declare yourself “cancer-free” but not worried about day-to-day survival. Which is another way of saying that we’re doing ok right now. Thank you all for your continued support.
Ok, back to business.
Suppose you run a business that has about 30 employees total — all in Connecticut. You’re not covered by the FMLA or CTFMLA or even the Connecticut Paid Sick Leave Act. Charlie — your employee — has been battling cancer the last six months and has just used up his four weeks paid time off. He is still dealing with the occasional chemotherapy treatment, but your policies — such as they are — don’t say anything about getting any more time off.
What are your obligations as an employer?
Well, you shouldn’t assume that you may not be covered at all by state or federal law. The Americans with Disabilities Act requires that a reasonable accommodation be made for disabled employees — and that could mean that in some circumstances, an unpaid leave of absence may be suitable. State law may have a similar imposition in some instances.
In the EEOC’s guidance on the topic, it states:
Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee’s disability. An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave. For example, if employees get 10 days of paid leave, and an employee with a disability needs 15 days of leave, the employer should allow the individual to use 10 days of paid leave and 5 days of unpaid leave.
And indeed, that may be a solution that you stumble to regardless. But the fact remains that there are limits to the rights of an employee in this situation. Charlie may not have the right to additional time off without losing his job.
So legally, an employer may decide (and again, consult with your lawyer about the specifics as not all cases are created equally) that it is within its rights to terminate the employee who has exhausted his paid time off.
But suppose you WANTED to give the employee additional time off — could you? Sure. You might give the employee time off unpaid but say that his job isn’t necessarily protected.
You may have to worry about the precedent this sets, but failure to treat your employee with additional courtesy may lead to bigger troubles of morale in the workplace and beyond. On the other hand, giving an employee additional time off may get yourself some additional loyalty from that employee when he returns healthy.
It is these sorts of employment law questions that are the trickiest because while you may have some legal rights as an employer, you may feel that you have an obligation (moral perhaps?) to act otherwise. For those, think carefully through each decision and seek appropriate legal help to guide you through it. I’ve covered other issues with cancer in the workplace here, for example.