Here’s a note from a reader who is on medical leave.
These situations are never straightforward. I don’t miss HR.
Hi, Laurie. How’s this for junk … I work for a large company. In May, I went on medical leave with a ruptured Achilles. As of June 1, I exhaust my TDI & am now on unpaid medical leave thru at least Aug 15, but it may extend.
In June, the company announces they are closing my unit on Sept 3. The six current jobs in my unit are to become five jobs in another department. Like musical chairs. We are all told to reapply. I get an interview and I go in with a doctor’s note. The jobs as described do not match what is online in the description. I don’t get hired.
My boss packs my desk, throws it downstairs for me to pick up. I tell the HR person that I’m not quitting. I’m told they expect me back Aug 15 and to keep applying for jobs in the company. I’m not qualified for anything that’s open.
I get the sense that my company wants me to quit. They said that should I chose to separate employment prior to Sept 3, they will pay me my full wages — but I’m on leave w/o pay. Quitting kills my chances of getting unemployment insurance. I think they are trying to avoid laying me off, especially because I have ADA certification & am on medical leave. I think that opens door for lawsuit… And yeah, I do need my health insurance, especially now.
Have you ever dealt with a situation this messed up before?? Any ideas??
Schwoo. This is messed up. I hate to say it, but it sounds like you are being sent a message. Your boss packs up your stuff and throws it out the door?
It’s over.
This is the dumbest situation in the world because your company could have handled this differently. You’re out on leave — you should be focused on getting well, not focused on interviewing for new positions.
Not that you’re a shitty employee, but if you were, there’s nothing worse than HR handling a situation like this because it creates animosity and a disincentive for you to get back to work. Issues related to performance get muddled up in the mishandling of the employee separation.
Since you’re not getting paid, I would use this time off and find another job. It might take awhile. Return to work on your assigned date and let them lay you off. You’ll qualify for your severance benefits, unemployment insurance, and COBRA. That’s not much of a buffer, but it’s better than nothing.
I wonder what other HR professionals have to say to this employee? Any experience with messy employee separations during medical leaves? In the past, I have eliminated the roles of people who were on short-term disability, long-term disability, and maternity leave. I hated to do it, and I preferred to leave it alone and wait until the employee returned from leave.
Thoughts, HR peeps?
{ 5 comments… read them below or add one }
This employee did not give enough information on her specific case. It would have been helpful for her to tell us:
• Is she on FMLA protected leave or has she exhausted that?
• What job is she doing? Is the ability to walk a job function?
• What is her performance like?
These cases are common. Based on the little info she gave us, here are my thoughts.
The ADA is intended to protect QUALIFIED individuals with disabilities. She clearly states that she does not have the skills to meet the job qualifications, so that is one concern. If she is on a protected leave, then under FMLA, the company will have to bring her back in similar position. I get the impression that she is not on protected leave though, so in my non-legal opinion, the burden is on her to prove that she is qualified for one of the open jobs.
She needs to demonstrate that she not only meets the job qualifications (skill, experience, education) but that she can perform the essential job functions with our without an accommodation. Is walking (which is a major life function as defined by the ADA) an essential job function? I don’t know if having a ruptured Achilles affects more than walking, but that would be something to consider.
As an employer, I can tell you that 99% of the HR people you deal with will do all they can to ensure that the company is meeting the ADA requirements as they apply to employees. So, I think there is more to this story that this woman is not divulging. Based solely on what she’s told us, I don’t see how she is covered by ADA. She HAS to be qualified and able to perform the essential functions of the job. She is clearly not. In that case, I’d tell her to make the better financial choice between either quitting or waiting to be fired. It’s really in her court.
Schwoo! Thoughtful answer. Trish, you know your stuff.
I regret not writing this response in a different way. I would write this as a former HR Generalist and ask the employee, “What do you want? What’s the best outcome for you?”
That was my #1 question taught to me by Vicki at Kemper. She hated me, but she was an awesome HR lady.
Most employees will say, “I just want my job back.”
Then I would say, “Okay. Anything else?”
I would pause. I learned that from Vicki, too.
9 times out of 10 the employee will say, “I just want to be respected and I’m unhappy and blah blah blah…”
It leads to a discussion about work, what’s really going on, and desired outcomes.
I’m going to tell you something else — the desired outcome is usually one where the employee leaves. Then I think, hey, as a generalist, it’s up to me to find a good way where the employee leaves the job with UI, COBRA, severance, no long-term issues with the company, and no legal claims.
R&W.
I agree with Trish. There isn’t enough information here. If leave started June 1, then I’m going to assume she’s on FMLA through the end of August…unless she already burned up FMLA prior to that. Does her company keep strict records on that?
It sounds to me like her company doesn’t want to lay her off and get dinged with the unemployment taxes. If they’ve had significant downsizing, this will be a huge expense for them. My company’s unemployment taxes increased 60x for 2010, so if her company is in a similar situation, they’re going to do everything they can to avoid another unemployment claim. That said, as the employee, you have to look out for yourself. Make them lay you off.
And frankly, when your boss packs up your stuff and dumps it for you to pick up, that’s pretty much constructive discharge, if not outright termination. I’d sure as hell claim a layoff. She should expect that her company will dispute it, which will drag into an appeal period, but contact unemployment now and start asking questions. If she really isn’t qualified for other jobs in the company, then she’s been laid off since her unit closed.
I have left them on leave and dealt with it on return. Her leave is not job protected any more, so she would need to look for available positions on return anyways. If they were moving offices, then it would be a good idea to let her know that her desk had to be packed for moves around the physical office space. The company should offer to hold onto it until she came back or to let her pick up the box, if she chose. It looks like HR wanted to put everything into neat compartments and put the work back on the employee while she is still on leave. I’m preaching to the choir here, but employees on medical LOA should not be involved in day-to-day business whether it is downsizing or applying for jobs. Use an admiinstrative leave upon return from a medical that is not job protected to allow the employee to seek a position.
@Trish I’m not so sure the burden is entirely on her. As most have said we don’t have enough information but if as she says “the jobs as described do not match what is online in the description”, the company could very well have some liability here. Which are the actual qualifications and are they true business needs and not an artificial attempt to bypass protection i.e. did they revises/create a JD with the sole purpose of eliminating her.