All you need to know about long-term medical leave: What you don't know can hurt you

Suppose that a good long-term employee at your practice is unexpectedly injured on the job and laid up for weeks. Then months. Then indefinitely. Your business and your people now face a mountain of decisions, and how they are made not only affects morale but also top- and bottom-line revenue.

We all know how difficult good staff members are to come by and how, over time, compatible co-workers begin to feel more like a family than employees. And when a member of the "family" goes out on any protracted leave such as long-term disability or workers' comp, the remaining staff members feel there is a piece missing.

The practice owner in this example is caught between a rock and a hard place. What he would really like is for his worker, Mrs. Hurt, to just heal and return, but that looks increasingly unlikely over time. So Dr. Owner is in a terrible situation: He is racking up an ever-increasing workers' compensation premium, is down a worker and may or may not be having success finding someone to fill in.

However, if a replacement employee is found and works out nicely, Dr. Owner then has to figure out how he is going to keep everyone if his long-term staff member is able to return, which is keeping him from telling the new hire for certain whether her job is permanent. She likely will file an unemployment claim the minute she is no longer needed and discharged, which is the last thing Dr. Owner needs on top of Mrs. Hurt's mounting workers' compensation costs.

There are also moral and legal obligations Dr. Owner has to Mrs. Hurt. Because she was a key staff member when she was working, Dr. Owner opted to pay her while she was out. However, he didn't expect her to be out for a year and counting. How does Dr. Owner tell Mrs. Hurt that he just can't afford to be so magnanimous indefinitely? And does he tell her that before or after he mentions that he can no longer pay for her family health insurance because he has to give that benefit to the young replacement worker?

Ouch! It's enough to make Dr. Owner want to go back to being an associate! Good thing he isn't a lawyer, too, because then he would worry himself to death considering the possibility of a lawsuit by Mrs. Hurt on the basis of either age discrimination (Mrs. Hurt is 50 years old), an EEOC violation (her maiden name was Lopez), or non-compliance with the Americans With Disabilities Act (she offers to do reception work as long as she was brought file folders and didn't have to stand or walk on the job). Although I have never seen this many potential problems arise from a single long-term comp claim, this example is an amalgam of many instances that I have seen arise in other workplaces.

Get it in writing

So how do we address the potentially serious problem of the long-term medical leave case?

As with any other employee problem, making a habit of maintaining employee performance records saves a company a lot of hassle later. It also doesn't hurt if there is at least a summary issued by the clinic to all employees covering hospital policy on continued employment for long-term medical-related leave.

This degree of organization and preparedness may seem overly onerous to the small veterinary hospital, but it really doesn't need to be. A brief handout covering what the practice can and will do if a worker is laid up for more than a few days is much better than nothing at all. If such a document is prepared—doing so only really requires a few hours of work—it helps eliminate the key issue in nearly all potential lawsuits, administrative claims and criminal prosecutions involved in letting go of a long-term workers' comp claimant after a lengthy absence from work.

The fact issue in this case? Simple. Discrimination. Has Mrs. Hurt been singled out and treated differently than other employees for any reason?

Discrimination really just means treated differently, and it is the issue around which virtually all employee claims against their employers revolve. If the veterinary practice has a written policy that it can only keep a worker's job open for six months while that person is on leave for any medical reason, that is the rule. It applies to everyone from new hires to employees with 20 years' experience, whether you were born in San Francisco or San Juan, and whether you left making twice as much or half as much as your replacement.

Based on this information, you should now go out and, with an hour or two of good input from a business attorney, put together a long-term leave policy. You will then need to pass it out and get a signature on paper from each employee stating that it was received. And all future problems will be minimized.

Wing it without a policy

What if you forget to do your homework? I have outlined the key issues that arise when an employee goes on a long medical leave so you are prepared in case you do not have a leave policy.

Staff morale backlash. Even if no one particularly liked the employee who was discharged after months on medical leave, that worker will usually be seen as a sacrificial lamb. As such, the other employees will begin to wonder what their fate would be under similar circumstances, which could cool the previously warm family environment. In the absence of a written policy, it is important to discuss the possibility of a long out-of-work period with the injured worker within a reasonable period after the event.

One way to handle the issue would be to explain to the employee that you are looking forward to his or her return and will try to keep the job open for "as long as we can but certainly for at least several more months?... " This serves as a tacit admission that the job eventually has to be filled by a permanent employee while giving you credit for keeping the return door open for the period you were intending anyway.

Improper discharge grounds. New legislation is creating new avenues for lawsuits by discharged employees. It is important to be aware of the more important pieces of legislation that could impact state and federal law.

Remember, it is not inherently illegal to fire someone because they have become too ill to work — many associate veterinarian contracts include such a provision in writing. On the other hand, while keeping that general rule in mind, there are many, many exceptions. As you read, keep asking yourself, "Can I prove that I handled this firing in the same way I would have handled firing any other employee in an identical situation?"

Terminating an employee for making a claim for workers' compensation. This is illegal and subjects the employer to a lawsuit and criminal prosecution. I don't mean it is illegal to fire someone who is on workers' compensation; rather, it is illegal to fire someone because they filed. The difference? You need to be able to prove that there was some other reason for the firing. Discharge for not being able to work for the foreseeable future is a business decision.

Firing for long-term absence for jury duty. This act violates public policy and is not permitted.

Discharging an employee on long-term medical leave when they are a member of a racial minority, over 50 years old, or a member of a specific religion. Obviously this is not a problem if the long-term medical leave employee is not in any of the "suspect categories." If they are in at least one of the categories, though, watch for the risk of a wrongful discharge lawsuit. If you almost never fire anyone, it is hard to prove that you would have fired a member of any ethnic group if he or she were too ill to work for the indefinite future. See? That's why you need a written policy...

Look into the law

In addition, it is important to familiarize yourself with the applicability of all statutes covering employees with medical issues.

1. Americans with Disabilities Act: Are you required to provide a reasonable accommodation to permit return to work?

2. Family Medical Leave Act: Are you in compliance if you discharge the employee when you elect to do so, or is it too soon?

3. More restrictive state disability laws (for example, California's Family Rights Act [CFRA] and the Pregnancy Disability Leave [PDL]): These laws may extend well beyond the time limits provided by federal statutes.

4. State-specific statutes: These statutes may include many more employers than federal law does (for example, California Fair Employment and Housing Act [FEHA], which applies to employers with as few as five employees).

Keeping these things in mind will minimize future problems. But your best bet is to put together a leave policy now and let all of your employees know about it.

Dr. Allen is president of the Associates in Veterinary Law P.C., which offers legal and consulting services to veterinarians. Call (607) 754-1510 or e-mail info@veterinarylaw.com

For a complete list of articles by Dr. Allen, visit dvm360.com/law.