ABSENT EMPLOYEES
How Long is Too Long for a Small Practice?
 
  
By: Charles H. Newman &
Jillian L. Romaniello, Esq.

Small physician practices are often faced with a dilemma when an employee is out of work for an extended period of time on disability, sick leave or family leave. The practice, by virtue of the fact that it is a small employer, usually cannot properly operate without all of its employees and the question becomes: how long must the practice hold the employee’s job open before he or she can be replaced?
 
The first thing the practice should do is request medical documentation for the leave. If an employee is electing to use the benefits of legal protections for those with particular medical needs, the employer has every right to request this documentation. Next, the practice should consult their employee handbook as extended leaves of absence are commonly addressed by policies contained in employee handbooks. The applicable policy may have a set protocol for how long an employee may be out of work or how long the practice will hold the employee’s job in the event of an extended absence or disability. The practice should also consider whether the employee can elect to apply any accrued vacation, personal or sick days to the extended leave.  
 
If the issue is not addressed in the employee handbook, the practice should then see if there are any legal requirements for holding an employee’s job open. As noted below, many of the laws that protect an employee’s right to return to work after an extended leave do not apply to employers with fewer than a certain number of employees. Unless one of those laws is applicable, the employee has an employment agreement or a policy has been put in place, an employee is considered an employee at-will and does not have a right to return to his or her job after a period of disability.
 
The Family Medical Leave Act (“FMLA”) is a Federal law which entitles eligible employees of covered employers to take unpaid leave for family and medical reasons, and which requires the employer to guarantee the employee his or her original job or an equivalent job with equivalent pay and benefits upon termination of the leave.1 Generally, under the FMLA, employees will be eligible to take twelve (12) weeks of unpaid leave during a twelve (12) month period for medical reasons such as the birth of a child, a serious health condition which rendered the employee unable to perform his or her job or the serious health condition of a spouse, child or parent.2 For private-sector employers, the employer must have fifty (50) or more employees in order for the FMLA to apply.3  
 
The State where the practice is located may also have a State law that applies to family and medical leave. The Family Leave Act, which is New Jersey’s version of the FMLA, mirrors the legal requirements of the FMLA, and also only applies to employers with fifty (50) or more employees.4 New York does not have a state version of the FMLA for private employers.
 
Employers often do not realize that there are other, lesser known, federal and state laws that govern how they must treat employees on an extended leave of absence. The Federal Americans with Disabilities Act (“ADA”), which applies to employers with fifteen (15) or more employees, prohibits discrimination against employees with disabilities.5    
 
The New Jersey Law Against Discrimination (“LAD”), which is New Jersey’s version of the ADA, applies to all employers regardless of size. The LAD prohibits discrimination against employees with disabilities or who fall into another protected class.6 The LAD has a very expansive definition of “disability,” which defines disability to include: 
 
physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or any mental, psychological or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Disability shall also mean AIDS or HIV infection.7 

 
Employers are required to provide reasonable accommodations to employees with disabilities, unless it would cause the employer an undue hardship. Examples would include flexible schedules and modified duties. “Undue hardship” is defined as: “an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.”8 The questions that arise under the LAD are (i) whether allowing the employee to take a periodic leave of absence would be a reasonable accommodation that does not cause undue hardship to the employer, and (ii) whether refusal to allow a disabled person to take a leave constitutes discrimination where non-disabled individuals were permitted to take similar leaves. Although the law applies to all employers regardless of size, its application may result in different outcomes for smaller employers. For example, keeping a job open for an extended period of time creates greater hardship where the person on leave is one of two administrators than where that person is one of ten.
 
The New York Human Rights Law (“HRL”), which is New York’s version of the ADA, also prohibits discrimination against protected classes.9 However, this law only applies to employers with four (4) or more employees.10 The HRL defines disability as:
 
(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.11 

 
Discriminatory practices also include a refusal to make reasonable accommodations.12
    
There are a number of other factors for small practices to consider before terminating an employee on an extended absence. For example, if another employee experienced a similar extended absence, the practice should be consistent is its treatment of similar situations to avoid the perception of impermissible discrimination. This could happen if, for example, an employee was previously allowed to take a leave of absence and retain his or her job, but in a subsequent case, an employee in a similar situation, but who is a member of an ethnic or religious minority, was not given the same opportunity.  
 
Practices should document all communications with the employee. Requests for medical documentation should also be in writing. Practices of any size should always consult with legal counsel prior to terminating any employee, especially those out on medical and or disability leave, to assess and, in some cases, proactively quash any potential legal claims that may arise.
 
 
 


129 U.S.C. § 2614.
229 U.S.C. § 2612.
329 U.S.C. § 2611.
4N.J.S.A. 34:11B-3(f).
542 U.S.C. § 12101.
42 U.S.C. § 12111.
6N.J.S.A. 10:5-12.  Protected classes include: race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.  N.J.S.A. 10:5-5.  The LAD also protects employees who are not currently taking illegal drugs and are in rehabilitation programs.
7N.J.S.A. § 10:5-5.
8N.J.S.A. § 10:5-12.
9Executive Law § 296.  Employers may not discriminate based upon an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.  Executive Law § 296.
10Executive Law § 292.
11Id.
12Executive Law § 296.
 

Kern Augustine Conroy & Schoppmann, P.C., Attorneys to Health Professionals,www.DrLaw.com, is solely devoted to the representation of physicians and other health care professionals. The authors of this article may be contacted at 1‐800‐445‐0954 or via email at JRomaniello@DrLaw.com