How long do you have to retain an employee on FMLA?

Author: Robert B. Andersen

This question comes from a small company out of New Jersey:

When an employee is off on workmen’s comp., how long do you have to retain their position or one of equal status?

With fewer than 50 employees, your company would not be covered by the Family and Medical Leave Act (FMLA) which would require the employer to provide up to 12 weeks of job protected leave to an eligible employee who needed time off from work due to a serious health condition including one caused by an occupational injury or illness).

Absent FMLA application and relative to continuing to hold open an employee’s job vs. terminating the employment relationship, the employer does not have a statutory obligation to hold the employee’s position open for a specific period of time. If the employee’s condition qualifies as a disability under the Americans with Disabilities Act (ADA), however, the employer WOULD be required to explore whether a reasonable accommodation, i.e., an extended period of leave, could be provided without experiencing an undue hardship.

If the employer can accommodate the employee’s absence, it would be required to do so under the ADA. As well, if the employer has a policy or practice of providing extended leaves to other employees with medical conditions, it would be required to do so as not to unlawfully retaliate or discriminate. Indeed, while applicable workers’ compensation statutes do not, to our knowledge, require the employer to hold open an employee’s job for a specific time period, they do preclude the employer from retaliating or discriminating against employees on the basis of their workers’ compensation claims. This means that the employer may nonetheless be required to retain the employee’s job if it is consistent with policy and practice to do so, and/or pursuant to the ADA if the employee is disabled.

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