The Key To Managing The Unmanageable Leave
What is a company required to do when an employee fails to return to work after a leave of absence, but won't respond to the HR Director's repeated attempts to contact the employee? Can the company simply claim that the employee has abandoned their job? Is the company allowed to replace the employee?
Ella has been off work for six weeks for a non-work related injury. She has not contacted the company since the first time she called in and has not provided any medical certification to support her time off.
She won’t return Phillip, the HR Director’s calls and he recently heard from another employee that Ella plans on applying for permanent disability benefits. Based on that information, Phillip has no idea if, or when, Ella will return to work.
What should Phillip do?
- Ignore the situation. Ella probably won’t come back to work if she gets permanent disability.
- Terminate Ella. Since she’s been out, the company hired a new employee who can run circles around Ella.
- Take Ella off payroll – that should do the trick.
- Engage in the interactive process to determine if Ella is protected under any state or federal laws, determine leave as a reasonable accommodation and document all communication (and communication attempts) with Ella.
The only viable option is the last one.
Most employers aren’t prepared to handle a leave of absence when their employee calls up one morning, in agony, saying they can’t come to work.
Employers are usually empathic, responding, “Don’t worry. Take as much time as you need. Your health is more im- portant than work. You just focus on getting better.”
Phillip never anticipated Ella would be out so long, or that she would fail to update the company on her condition.
All hope is not lost.
Even at this stage, Phillip can manage this unruly leave of absence. Communication and documentation are the keys.
Phillip needs to start communicating with Ella through both phone calls followed up with formal letters sent through regular mail. If available, the letters should also be sent to the employee’s personal email address.
Attempting to contact the employee via phone is important because it shows the company has made a reasonable at- tempt to contact Ella about her continued leave of absence. If Ella answers the phone, then Phillip can talk to her about possible accommodations she might need and document the conversation. If Ella does not answer, then Phillip can leave a message and document both the attempt and any failure to respond.
Any attempt at oral communication should be documented in writing to the employee. The written correspondence should contain the following elements:
- You have been out since...
- We would like to engage in the interactive process to determine a reasonable accommodation.
- We have attempted to reach you by phone on ____ and left you a voicemail. You did/did not return the call.
- NOTE: If the call was returned, summarize the phone conversation.
- We also attempted to contact you via mail on _______.
- NOTE: Include copies of the past written communications.
- We need medical certification from your physician by...
- NOTE: Include a copy of the medical certification.
- Please contact me if you are unable to provide this certification by...
Sending this type of correspondence should get Ella’s attention. It also puts the onus on Ella to participate in the pro- cess of securing her employment.
This is not a “one and done” communication. Phillip should call Ella several times and send multiple letters to demon- strate that he attempted to contact her several times during the process.
Finally, before taking any adverse action, call your HR Professional for further guidance.
Tip: Send letters via certified mail through the post office, no return receipt requested. Savvy employees may not sign for letters from their employers, therefore, the letter was never received.