it has been 6 weeks and I am short handed, he just received another 2 week extension.
Employers covered by mandatory leave laws (such as family care leave laws -- the Federal FMLA and California’s CFRA) must provide these leaves to eligible employees. Mandatory leave laws require "covered" companies to give time off to eligible employees. But, as the word “covered” suggests, mandatory leave laws do not apply automatically to every company. So, before employers know which leaves they are required to provide to their employees, employers need to know which laws apply to them and to their employees.
Even if companies provide leaves, employees are not entitled to take time off unless they meet the eligibility requirements for each leave. These requirements may include a minimum length of service with a company, having a specified reason for the leave, providing the employer with advance notice, proving a need for the leave, and so on. It gets complicated, believe me.
Usually, employers must put up approved official-looking posters that explain leave rights in sometimes difficult to follow formats. If employers don’t provide mandatory information about mandatory leaves, if they fail to grant appropriate leaves to eligible employees, or if they fail to provide employee benefits associated by law with certain leaves, they may face administrative, civil, and criminal penalties. Besides these penalties, if employers illegally fire or discipline employees who take a leave, these now former employees may sue their former employers for violating their rights. For instance, employers may be sued for wrongful discharge, harassment, retaliation, or discrimination under certain circumstances.
Regulatory agencies may sometimes step in to represent the right of such former employees. It can all get downright nasty.
In answer to your specific question, 6 weeks turning into 8, besides giving employees time off, companies generally must reinstate employees to their former positions after they return from leaves. And, they’re usually prohibited by law from refusing promotions or benefits to (or taking any adverse action against) employees who take a leave.
However, that having been said, leave laws do not offer permanent protection from nondiscriminatory employment decisions. Employees who are granted a leave are not insulated. They are not guaranteed job security for life. So, employers may still make legitimate personnel decisions for legitimate business reasons. They aren’t required by law to keep jobs open for employees who are incompetent, whose jobs have been eliminated, or who have violated company rules.
Maybe for the short term it would be prudent to hire a temp, if that works for you. Often the employee who took leave has been trained and is therefore more valuable upon their reasonable return than any new employee would be. I feel your pain, but if we assume that the on-leave employee was good before and will be good upon return, then two more weeks of waiting is a lot better than any alternative.
Hope this helps. This is a complicated area of the law and it is difficult to make any broad sweeping statement…specific facts can change things. The size of the workforce makes certain laws applicable or inapplicable…and different laws sometimes calculate the size of the workforce differently. I obviously have no idea what your specific concern might be regarding this particular employee's eventual return from a leave, -- you may need professional advice that works with your facts to fashion a response that truly fits. Having given you this general overview, I end with this advice -- Beware of general advice in this area.
In addition to the employee's rights under FMLA and CFRA, depending on the reason for the leave the employee may also be entitled to an accommodation under the ADA and/or the Fair Employment and Housing Act. Both laws require employers to provide disabled employees with reasonable accommodations unless to do so would cause an undue hardship. A reasonable accommodation can include a temporary leave of absence. There is no definitive answer as to how much time is "too much" time for a leave of absence. It is highly fact intensive and will depend on a number of factors including the nature of the work, the employee's anticipated time off, and how the leave of absence impacts the company. The company and the employee are required to engage in an interactive process to determine what, if any, accommodations will enable the employee to perform the essential functions of the job.
Before terminating the employee or refusing the leave of absence, speak with an attorney familiar with the medical leave and disability leave laws.
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