What to do if an employee can’t (or won’t) work


Your employees are crucial to the success of your business. In order to keep things running smoothly, you most likely need a team who can show up on a regular basis. But as we all know, there are many reasons an employee might need to take some time off. Whether it’s because they’re sick, need to care for someone else, or because they have a disability,  your employee can utilize certain protected leaves: 

  • Family and Medical Leave Act: Employers with at least 50 workers within 75 miles must provide 12 weeks of unpaid leave so employees can care for a new child, a family member with a serious health condition, to care for their own serious health condition, or to handle an emergency related to a family member’s active duty in the military. 
  • Disability leave: Workers who are limited due to a physical or mental impairment have the right to take a leave of absence from work or to receive a reasonable accommodation. 
  • Paid leave: You may live in a state that requires you to provide paid sick or family leave for your employees in addition to the unpaid leave they are entitled to through the federal government. 

But what happens if the leave runs out and they still cannot get back to work? And what if you have an employee who simply will not work despite being able to? Can you terminate them? 

The rules depend on the situation and may vary depending on what state you operate your business in. 

Family and Medical Leave 

If you are an employer who is covered under the FMLA, meaning you have at least 50 employees in a 75-mile radius, you are required to allow eligible employees to take up to 12 weeks of unpaid leave for a qualifying reason, including: 

  • Newborn child care
  • Care for a child after an adoption or foster care placement
  • Immediate family member care—including spouse, child, or parent—with a serious health condition
  • Medical leave for an employee’s own serious health condition
  • To handle an emergency related to a family member’s active duty in the military. 

Your state may also require more family and medical leave, whether paid or unpaid. If this is the case, you must allow your employee to take whatever leave they are eligible for before considering termination. 

Note: If an employee qualifies for Workers’ Compensation leave due to an injury on the job, it may run concurrently with the FMLA. This means that the amount of time they take off for that injury can be taken out of their allowed FMLA time. The employer just needs to provide a written notice that the leave will be counted as FMLA leave. 

You must notify the employee when their leave is up and discuss their expected work status. However, if they still do not return to work and do not have any other leave options available, you can terminate them. But proceed with caution. 

Make sure to consult an employment attorney before making the final decision to examine their specific case and ensure there are no other factors that could lead to a wrongful dismissal, such as a disability. 

COVID-19 paid leave tax credits 

While the Families First Coronavirus Response Act (FFCRA) required employers to provide paid leave to employees impacted by COVID-19, the rules are no longer in effect. However, if you voluntarily provide it between April 1, 2021, and September 30, 2021, you can claim a tax credit. 

Employers who provide paid sick and family leave can claim the following tax credits: 

  • Getting the COVID-19 vaccine
  • Recovering from any injury, disability, or condition related to the vaccine
  • Awaiting the results of a COVID-19 test or diagnosis

Disability 

The Americans with Disability Act (ADA) makes it illegal to terminate someone because they have a disability, which is defined as “a physical or mental impairment that substantially limits a major life activity.”

The law covers employers with at least 15 workers and requires them to offer a “reasonable accommodation” as long as that accommodation does not cause “undue hardship.” If the ADA covers your business, you may need to provide accommodation even after the employee’s FMLA leave and any available paid leave runs out. 

That accommodation could mean more unpaid leave for the employee. 

However, “undue hardship” means that any reasonable accommodation should not cost you more than you can afford. You only need to provide the accommodation if it doesn’t negatively impact your business to a point that you consider unreasonable. 

Communicate with the employee and try to work out a plan that works for both of you. Document the conversations so you have evidence that you attempted to come up with a leave plan that doesn’t harm your business. If there is no such available accommodation, you may terminate the employee. 

Additionally, if you do make accommodations that allow your employee to return to work in some capacity but they still do not come back, you may terminate them.  

What about absenteeism? 

You may have an employee who simply won’t show up for work. There aren’t many laws in place that protect them from being fired, as most states in the US recognize the “at-will employment” rule that allows you to terminate an employee at any time outside of federal and state law protections. 

Establish a policy in your employee handbook about your policy on absenteeism. In your policy you should lay out: 

  • The process employees should follow to request time off and use personal days
  • How you handle last-minute sick time
  • Whether or not you require signed notes or documentation
  • How to communicate with other employees to cover shifts
  • What the consequences are for not showing up

Some businesses enforce a zero-tolerance policy, meaning one instance results in termination. Another tactic is to implement a “three-strike” plan. This includes warning the employee the first time and terminating them if the problem persists. 

Make sure your team is aware of the absenteeism policy. And be sure to enforce this policy for everyone equally to avoid any claims of discrimination. 

Have more questions about terminations?

Homebase can also help. With HR Pro you’ll get access to certified HR experts who can answer any questions about specific employee situations, review your existing termination policies, and even help you create new ones.



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