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Ask the HR Expert: Legal & Legislative

Posted by NEHRA  June 23, 2011 09:00 AM

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Q. One of our employees has given his two-week notice resignation letter. His first year with the company will be completed just before his last day of work. Is the company legally responsible for paying his accrued vacation time, instead of him actually using it in the form of days off?

A. In general, there is nothing that prohibits a company from fairly enforcing a policy that requires that employees use their vacation time to cover all or part of the period after they give notice of resignation. But it may not be very smart to have such a policy. Any employee who wanted to circumvent the policy could do so simply by not giving advance notice of his departure. The practice involving two weeks of notice generally is mere custom. An at will employee can quit any time, with or without notice.

DAVE HENDERSON

Q. I had an employee that went on medical leave for undisclosed emotional issues nearly 2 years ago. This person progressed through STD and then was placed on LTD. During that time the company removed this person's name from rosters, performance reviews etc with HR stating that usually in cases like this, they would eventually drop from employment status and remain on permanent disability. I assumed this person would not return. I have just been informed that this person has been cleared to return to work form the independent company that manages our STD/LTD claims. Since that time there have been a number of layoffs and our staffing levels are still under pressure. What is my obligation to provide a position for this person given this elapsed time? There are others doing the work this person performed before and I do not have a position to fill. Does the law require a company keep a position open for an unlimited duration?

A. Whenever there is an issue relating to your particular Long Term Disability plan, you should consult the plan documents to determine whether they address the situation. In general, however, the law does not require that a company keep a position open for an employee who he goes on LTD leave. The usual rule is that an employee is considered terminated when he goes on LTD leave, and if he later is determined to be fit for duty, he must reapply to the company if he wants to be considered for employment again. Further, If the employee does reapply, the company generally has no obligation to rehire him merely because he previously was on LTD leave.

DAVE HENDERSON

Q. I am employed as an exempt employee with one of the nation’s biggest banks. I have gone from an 8 hour shift to a 10 hour shift as required by my employer. For 3 years, I have not had the opportunity to have a scheduled lunch or break. When I was hired, I was told my department does not allocate for scheduled lunches or breaks. Is this legal?

A.
The Fair Labor Standards Act, which governs the hours of work and wages, does not require that an employer provide an employee with meal or rest breaks. However, some states do mandate meal and rest periods. Massachusetts, for example, requires that employers provide a 30 minute unpaid meal break to employees who work for more than six consecutive hours. Non-exempt employees who are asked (or offer) to work through their meal break should be compensated for that time. Since you are exempt, the pay issue is not a concern, because you are paid on a salary basis for all hours worked. Regardless of whether you are exempt or nonexempt, your employer needs to provide you with an uninterrupted 30 minute break in Massachusetts, unless you voluntarily waive your meal break. Your employer need not set a formal schedule for your meal period, and many employers permit exempt employees to schedule their own breaks. However, the 30-minute meal period must be provided.

KRISTA GREEN PRATT

Q. We have an employee who has bad cataracts in one of his eyes. Although we tried to work around his schedule, he felt it was in his best interest that he go on Disability. He signed a letter stating that his position would be pending on availability when he returned. Are we liable to keep his position open for him?

A. Based on your description, the employee will likely be covered by the Americans with Disabilities Act (“ADA” or the “Act”), which generally prohibits discrimination against “qualified individuals with disabilities” and imposes a duty on employers to reasonably accommodate employees with disabilities. Earlier this year, the Equal Employment Opportunity Commission issued the long-awaited final regulations to the ADA Amendments Act. These regulations underscore the broad reach of the law and direct employers to focus more on accommodating disabilities rather than challenging whether a particular employee meets the definition of disabled.

Given this new expansive approach, it is likely that the employee’s cataracts would qualify as a disability. The question therefore becomes whether you have met your obligation to engage in an interactive dialogue with the employee to identify an appropriate reasonable accommodation, which may include time off from work to recover, a schedule adjustment, or other options. This interactive dialogue will vary based on the nature of the disability, job, and employer. In this case, you apparently offered a schedule adjustment, which the employee declined in favor of a leave of absence. Whether or not the schedule adjustment was an effective reasonable accommodation will depend on the employee’s condition. If the only feasible accommodation was time off from work, then you may have an obligation to keep the position open until the employee is ready to return. However, indefinite leave is not a reasonable accommodation. Also, if the schedule adjustment was an effective reasonable accommodation, and the employee simply refused because he preferred a leave of absence, then you may be able to take the position that the leave was unauthorized or that the employee failed in his obligation to engage in the interactive dialogue. Before terminating the employee or replacing him, you should consult with counsel. These situations can be complicated and highly fact-specific.

KRISTA GREEN PRATT


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