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Legal Topics of General Interest
DOES YOUR EMPLOYEE HANDBOOK NEED A CHECKUP?
QUESTION:
Our employee handbook was written a few years ago? Does it need to be updated?
ANSWER:
Whether or not you agree with new laws expanding employees' rights, your office may have legal exposure if your personnel policies and practices aren't current.
1. WHO USES THE MANUAL?
When considering an update of your office personnel policies or employee handbook, it is helpful to keep in mind who relies on its contents. Does your employee handbook present and explain office policies and rules to everyone (i.e. managers as well as staff) or does your manual contain policies for use only by managers on a restricted or confidential basis? The extent and frequency of needed updates may vary depending on who is relying on the manual.
2. POLICIES AND RULES.
Frequently, policies and rules are combined and the titles "personnel policies" and "employee handbook" or "manual" are used interchangeably. Since some court cases hold that employees are entitled to rely on what is published by the employer, clearly stated policies and rules can prevent misunderstandings and reduce the likelihood of employment related claims.
Policies are means to achieve objectives (i.e. a "guide"). For example, an office objective might be to minimize absenteeism. The office policy states the allowable reasons for absence from work. Another office objective could be to control drug use on the job. The policy describes the office's drug control program.
Rules state mandatory requirements and the consequences of failure to comply. For example, an employee who is absent because of illness for more than one day must present a doctor's excuse or the absence is un-excused. Another example of a rule is any employee who uses drugs on the job can be discharged.
Because office practices and rules often adapt to changing circumstances, make sure your written rules, policies, etc. reflect current office practices.
3. PITFALLS.
Court cases as well as State and Federal legislation continue to expand and clarify "employee rights." The lack of up-to-date policies can expose your office to potential liability. Consider the following examples:
Sexual harassment.Do your managers know how to shield themselves and the office from accusations of sexual harassment? Do you have a concise written policy on harassment and a protocol for investigating and resolving claims? Do your employees know how and the persons to whom sexual harassment can be reported? A "no harassment" policy is required by law and an employer can be strictly liable for harassment by a supervisor.
Disabled workers. Under the Americans with Disabilities Act (ADA), an employer can be required to make special accommodations for disabled employees. Your hiring procedures are also affected by the requirements of ADA.
Leaves of absence. Employees may be eligible for unpaid leave under the Family and Medical Leave Act. An employer may be obligated to hold a job for extended periods of time due to pregnancy or cases of work related injuries (including stress).
Wrongful termination.Personnel policies and employee handbooks which contain carefully worded statements about "at will" employment and disclaimers of any contractual rights can be very helpful in preventing or defending lawsuits for wrongful termination of employment.
Progressive discipline.A well meaning program of progressive discipline (e.g. verbal warning, written warning, suspension, termination, etc.) that allows an employee multiple "chances" to improve can be interpreted as a legal obligation or protection for the employee. Failure to give multiple warnings may be grounds for a wrongful termination lawsuit, even when poor employee performance or improper conduct can be proven. If you have a progressive discipline program, it should be carefully followed to prevent a claim that you violated your own procedures.
4. STAYING CURRENT.
Employees leave and new employee are hired. The law changes. Medical practices expand, merge, and break up. Lay offs. Expectations of a "productive work environment" change as new generations of employees enter the work force. Capitation and managed care.
Ongoing changes in a wide variety of areas can cause an employee handbook to become out of compliance with legal requirements or no longer reflect what is actually happening in your practice.
Someone in your office should be charged with the responsibility of staying current on employment issues. In many instances, this can be done by reading trade magazines or professional human resources journals which often contain "updates" or notices of legal changes.
Periodically, your office manual should be reviewed for conformance with minimum legal requirements so that it serves as a tool to help manage your practice rather than an unintended source of employment related claims.
RESPONDING TO REFERENCE REQUESTS
QUESTION:
We frequently receive requests for references about former employees; how should we
respond?
ANSWER:
A "no reference" policy minimizes the risk of litigation based on defamatory comments but employers may give references and avoid defamation lawsuits if only factual, truthful information is disclosed.
Employers seeking to minimize risk of litigation based on alleged defamatory comments frequently adopt "no reference" or "limited reference" policies. Good employees are harmed by such policies (since good references as well as bad references are not given). Without access to accurate information prospective employers may unknowingly hire marginal employees.
A recent California Supreme Court case highlights the prospective employer's risk of being sued for negligent hiring and the former employer's risk of being sued for negligent failure to warn about unsuitable employees. In the case of Randi W. v. Muroc Joint Unified School District (1997) 14 Cal.4th 1066 a former employer gave a positive reference to a school administrator. The reference emphasized his ability to work well in a school environment, his "outstanding rapport with others, and his reputation as an upbeat, enthusiastic administrator who relates well to the students." The reference failed to mention, however, that the administrator had been disciplined for sexual misconduct with female students in his previous teaching assignments. A student in the school district sued the former employer of the school administrator who she accused of sexually molesting her. The California Supreme Court held that the student could maintain a lawsuit for negligent misrepresentation and fraud because the former employer had a duty to provide a complete and accurate job reference to prospective employers and third parties. The Randy W. v. Muroc Joint Unified School District case holds that an employer who chooses to provide a substantive job reference where there is a substantial and foreseeable risk that a person could be exposed to physical injury because of an incomplete or misleading information in the reference, must provide a complete and accurate job reference. Interestingly, the employer does not have a duty to give a job reference; but if it chooses to do so it must be complete and accurate and not mislead.
If your office provides references on former employees, consider the following guidelines:
1. Require all prospective employers asking for references to submit the request in writing. Also require the new employer to provide a signed statement from the former employee authorizing the release of information.
2. Designate a person in your office to provide references. If a limited number of employees are authorized to give references the risk of contradictory references will be minimized.
3. Disclose only truthful information. An employer that conveys truthful information in a reference will not be liable for defamation. Inform all staff who give references that they must confirm that the information conveyed is factually correct, before the information is released.
4. State facts and avoid conclusions. Not all reference questions have to be answered, particularly those calling for conclusions (e.g. "would you re-hire this person?"). Negative facts about a former employee should be stated objectively (e.g. the employee refused to follow supervisor directions, or the employee was frequently absent or tardy). The facts described in a reference should speak for themselves. Favorable facts about the employee should also be included. The inclusion of favorable facts will decrease the chance of a lawsuit and minimize the chance of a finding of malice (which disqualifies an employer's privilege in a defamation action).
5. When in doubt, don't give a reference. If you have reason to believe that the former employee may be untrustworthy or may have expressed a high level of dissatisfaction while employed by you, it would be better to give no reference or to limit the reference to dates of employment, job title, rate of pay.
6. Adopt a policy regarding references. You have the option of adopting a "no reference" or a "limited reference" policy. The most frequent reason former employees consult a lawyer about a bad reference is because of unexpected facts or opinions expressed in the reference. If you have a reference policy it should inform employees in advance of the facts that will be given in future references and not simply say that the recommendation will be "good" or "unfavorable." The policy should explain what information the reference will include (i.e., dates of employment, job titles, a statement about the employee's work performance, the reason for termination of employment, etc).
7. Follow your reference policy. If you have a "no reference" policy, don't give references. If you have a "limited reference" policy adhere to the limited disclosures your employees believe you will be making about them. Do not permit unauthorized persons to give "off the record" references.
In conclusion, you do not have to give references but if you do, you have a legal duty to prospective employers and third parties to provide a complete and accurate job reference.
PREVENTING PERSONALITY DISORDER CLAIMS
QUESTION
I have heard that personality disorders must be accommodated under the Americans with Disabilities Act (ADA). Is there any way to anticipate and minimize the disruptive behavior of an employee with a personality disorder?
ANSWER
A well drafted job description containing essential job functions that are psychological in nature will minimize the risks of a potential ADA claim based on a recognized/protected psychiatric disability.
Personality disorders are sometimes the genesis of claims of workplace harassment and discrimination because individuals with a personality disorder can interpret events in a distorted fashion and rationalize their own unreasonable behavior. Often, employees with personality disorders have relatively good contact with reality so their accusations, although false, may sound quite plausible.
As you know, job descriptions are not required by law, but where an employer has prepared a written job description before advertising or interviewing applicants for the job, this description will be considered evidence of the “essential functions of the job”. You should seriously consider including in your written job descriptions qualifications which are psychological in nature, as a means of preventing potential ADA claims based on a recognized/protected mental disorder needing accommodation.
Examples of specific psychological qualifications which could be placed in the job description, along with other requirements of job, include:
! The ability to appear for work on time
! The ability to follow directions from a supervisor
! The ability to interact well with co-workers
! The ability to understand and follow posted work rules and procedures
! The ability to accept constructive criticism
! (For managers and supervisory personnel) the ability to lead and manage others
! Subject to the precise requirements of a particular job, other sources of stress that might exist on the job should be identified and coupled with the ability to perform (e., g., quotas, production rates, speed/efficiency, error rate, etc.)
Policies which could be implemented focusing on the conduct of employees (who may claim disability) as opposed to the employee’s condition could include
! A comprehensive policy against harassment and a personal appearance and behavior policy
! A work place violence policy that prohibits violent and threatening behavior
! A substance abuse policy which prohibits employees from coming to work with unlawful substances “in their system” (which can be established by scientific tests) as opposed to “under the influence” (which is generally a value judgment by an observer).
! A code of employee conduct which prohibits discourtesy, insubordination, dishonesty, etc.
If these policies are in place, violations by employees should be documented in writing and appropriate disciplinary action taken. The ADA does not prohibit an employer from holding a disabled employee to the same rules of workplace conduct as non-disabled employees.
A sample “personal appearance and behavior policy” could be worded as follows:
In addition to our no harassment policy, we maintain a personal appearance and behavior policy. This policy is directed toward conduct which may not otherwise fall within the legal definition of harassment, but nonetheless projects image problems for the company.
We do not have a formal dress policy and prefer to rely on every employee's good judgment to dress appropriately for a business such as ours and the job he or she is performing. We do expect all employees to project a neat, well-groomed appearance and a courteous disposition. We feel that these qualities go further than any other factor in making a favorable impression on the public and on your fellow employees.
Please avoid extremes in dress and behavior. Flashy, skimpy, or revealing outfits and other non-businesslike clothing are unacceptable. Likewise, unprofessional behavior in the workplace, such as sexually related conversations, inappropriate touching (i.e., kissing, hugging, massaging, sitting on laps) of another employee, and any other behavior of a sexual nature is prohibited. Employees who fail to observe these standards will be subject to disciplinary action, up to and including termination.
WHO ARE YOU HIRING?
QUESTION
We would like to get a better sense of who we are hiring, before we actually make an offer of employment. What do you recommend?
ANSWER
Depending on your motivation for wanting to know more, you may want to consider, at a
minimum, using pre-employment drug screening/testing, or you may want to do something more elaborate, like using background checks.
Pre-Employment Drug Screening/Testing
It is lawful to require an applicant for employment to successfully pass a pre-employment drug screen.
While medical examinations may be required only after a conditional job offer has been extended, a test to determine if an applicant is illegally using drugs is not considered a medical examination. This means that a drug test can be done even before making a conditional offer of employment and a drug test can also be used even if the company does not require pre-employment medical examinations.
All (not just some) applicants for employment must be required to successfully pass a pre-employment drug screen.
Implementation
The first step will be to select an occupational medicine clinic or health care provider who is experienced and certified to do pre-employment drug testing and confirm any special requirements.
The second step will be to prepare a standardized authorization and release form for applicants to sign at the time they apply for employment granting permission for the testing.
The third step will be to establish a reporting procedure from the testing site to a designated person at your office to assure confidentiality requirements are met. A checklist should be developed for that designated person to follow for confidential filing and scheduled destruction of the reports.
To the extent necessary, your employment application intake/interview process will need to be adjusted to include this new step, and basic instruction on how to implement the program should be provided to your staff.
Investigative Consumer Reports
Commonly known as background checks, any report that contains or gathers information (through any means) on a person's character, general reputation, personal characteristics or mode of living for employment purposes is deemed to be an investigative consumer report and is regulated by California law. Employment purposes include evaluating a person for: (1) offering employment; (2) promotion; (3) reassignment, or; (4) retention/termination of employment.
Requirements for Obtaining and Using
The report must be intended for use for employment purposes. If the report is sought for reasons other than an investigation of an employee based on suspicion of wrongdoing or misconduct, there are numerous notices that must be given, not only to the prospective employee, but also to the investigative agency. In addition, the person must be presented with a form that permits the person to "check a box" indicating their desire to receive a copy of a report. A report must be given to the person not later than three days after it is received .
Typical contents of an investigative consumer report will include lawsuits, judgments, tax liens, collection actions, and criminal records going back seven years, although bankruptcies can be reported back ten years.
If you use an investigative consumer report employment as a basis to deny employment, the applicant must be so advised and given the name and address of the investigative agency, because the person has the right to inspect and contest the accuracy of the report.
Implementation
The first step is to select a reputable investigative consumer reporting agency.
The second step is to the prepare standardized forms for applicants to sign at the time they apply for employment and for certifying to the investigative agency that the required disclosures have been made.
The third step is to develop a checklist or list of rules for designated personnel at your office to follow for the use, filing, disclosure and scheduled destruction of the reports to assure confidentiality requirements are met.
To the extent necessary, your employment application intake/interview process will need to be adjusted to include this new step, and basic instruction on how to implement the program should be provided to your staff.
PERSONNEL RECORDS
QUESTION
Recently we received an request by an employee to inspect her personnel file; how do we
respond?
ANSWER
Employees generally are permitted to inspect personnel records, but not all employee records should be kept in the personnel file.
California law permits an employee to inspect personnel files which are used to make decisions about the employee's qualifications for employment, including discipline, promotion, additional compensation, or termination of employment. An employer must keep a copy of each employee's personnel file at the place the employee reports to work and make the file available within a reasonable period of time after a request is made for inspection.
California law also provides that if an employee signs any document relating to employment, a copy must be given upon request. Accordingly, an employer must not only make available for inspection, but provide copies of such items as employment applications, employment agreements, confidentiality agreements, covenants not to compete, authorizations, tax forms, employee evaluations and other documents signed by the employee. Except for documents signed by an employee in connection with employment, the employer is technically not obligated to permit employees to photocopy portions of their files.
A variety of laws designed to prevent discrimination and promote safety require that employers maintain certain types of records. As a matter of convenience, employers frequently group these records together in personnel files. The safest course of action to prevent claims of invasion of privacy or other legal challenges is to exclude from an employee's personnel file any information that the employer does not have a legitimate business reason to know or to use in making employment decisions. For example, all medical records, including results of medical examinations, as well as drug and alcohol tests, should be kept highly confidential in a separate file from the individual personnel file. Access should be strictly limited to those with a legitimate need to know or made available only in response by a legitimate inquiry by a properly authorized government agency.
Information related to the employee's race, religion, color, sex, age, national origin and marital status should not be in the personnel file. Accordingly, a personnel file would not normally contain marriage certificates, birth certificates, information about participation in religious activities or organizations, child care information, or extraneous information about an employee's personal life, personality traits, or characteristics not critical to job performance.
If an employer collects information during the hiring process about credit-worthiness or personal information that is not used in employment related decision making after the employee is hired, this information should be maintained in a separate file and have additional restrictions as to access.
Verification of the right to work in the United States (I-9 form) should be kept separately because of the right of the government to inspect for compliance. If the form is located in the personnel file, an inspection for compliance could potentially expose other confidential information to the inspector.
A job description should be in the personnel file so that the "essential functions" of the job are defined for purposes of determining whether an accommodation can be made, should the employee become disabled. Likewise, the personnel file should include performance standards to measure how well the job is being performed.
It is important periodically to review personnel files to ensure that only the appropriate documents and reports are being maintained and that medical information and other confidential information is being maintained in a separate file with limited access. In deciding which items to include or exclude, an employer to a certain degree must rely on common sense. If it is not obvious that the particular document or information is important in an employment related decision (e.g. access to training, a transfer, a promotion, or the termination of employment), in all likelihood that document should be excluded. It is safer to be conservative about including documents in a personnel file, rather than having to explain to an administrative agency, a judge or a jury why such non-job-related information was included and then convince them that the information was not used inappropriately, or illegally, in making an employment decision. Ordinarily, the burden will be on the employer to explain and justify the reasons for including questionable documentation in a personnel file, so it makes little sense to add to this burden by including extraneous documents and information that an employer is not legally required to retain.
AVOIDING DISCRIMINATION CLAIMS IN THE WORKPLACE
QUESTION:
We are planning a reorganization of our office and some of the changes we plan to implement will affect staff members who are currently on worker's compensation leave. We don't plan to terminate their employment but their jobs will be different after our reorganization. Are we at risk?
ANSWER:
Considering the expense associated with answering a charge of discrimination/violation of Labor Code §132a and the wide breadth of interpretation of this employee protection statute, you must be circumspect and cautious about taking any adverse action against an employee who is on worker's compensation leave, unless there is substantial written evidence of job related reasons for discharging, demoting or transferring the employee, etc.
You should keep in mind the following policies and procedures for employees who may be injured in the course and scope of their employment.
No Discrimination
California Labor Code §132a expressly prohibits discharging, threatening or discriminating in any way against an employee who has received an award from, has filed, or even intends to file a worker’s compensation claim. Courts will broadly interpret and apply the protections of Labor Code §132a in favor of an injured worker when determining whether an action taken by the employer is "adverse" to the injured employee.
Damages and Penalties
An employer found to be in violation of Labor Code §132a may be subjected to a penalty (up to $10,000) and may be required to reinstate the employee and reimburse the employee for lost benefits and lost wages.
The defense of and the indemnity claims against an employer for violation of Labor Code §132a are not covered under worker's compensation insurance coverage. Costs of defense and payment of any award or settlement must be paid by the employer.
Examples of Prohibited Conduct
The range of actions that are potentially discriminatory (constituting "adverse" action) extends far beyond the conduct specifically outlined in Labor Code §132a itself. Examples of employer conduct which have been found to be discriminatory/in violation of Labor Code §132a include:
C - Demotion.
C - Loss of seniority.
C - A policy terminating an employee who is off work for any specific period of time due to any medical reason.
C - Charging an employee's sick time for industrially related absences.
C - Failure to rehire after a layoff.
C - Failure to allow the employee to return to work without an examination by the employer's physician.
C - Failure to allow an employee to return to work or to reinstate an employee, where there is no evidence of inability to perform work on a permanent basis.
The "Realities of Doing Business" Exception
The California Supreme Court has interpreted Labor Code §132a saying that it "does not compel an employer to ignore the realities of doing business by re-employing unqualified employees or employees for whom positions are no longer available." Although employers are generally prohibited from engaging in conduct that is detrimental to the injured worker, there are times when the conduct will be permitted if it can be shown conclusively that it is "necessitated by the realities of doing business." This means that "it is neither realistic nor reasonable to require that an employer create a class of absentee employees . . . by keeping positions 'open' for an indefinite period of time on the possibility that the former occupants may recover from an industrial injury."
Danger Area
At the present time, the law is not clear whether it would be a violation of Labor Code §132a if the employer refuses to provide employer paid benefits (such as health insurance) which the employee received prior to the industrial injury, while the worker is out on injury leave.
"Mixed Motive" and Burden of Proof
The initial proof of a violation is the obligation of the employee who must prove that: (1) the employer’s action was taken as a result of the industrial injury; (2) the action was detrimental to the employee; and (3) absent the injury, the employer would not have taken the action it did.
The employee does not need to show that there was actual intent by the employer to discriminate. If the employee can establish that some detrimental action was taken and that it was related in some fashion to the industrial injury, the case becomes one of "mixed motive." The burden then shifts to the employer to prove that the action it took was required by "business realities."
Whenever an injury is sustained by a worker, the employer should be extremely careful about its documentation, its timing, and its characterization of any action affecting the employee. Loose talk, joking, and even innocent references to the injury may be enough to establish "some relation" between the industrial injury and the adverse action taken by the employer.
Fitness for Duty
An employer is entitled to receive clear evidence of fitness for duty before reinstating an injured worker. An employer may not insist on the evidence of fitness for duty being provided by its own doctor; it must accept medical evidence from the employee's physician. Further complicating the "fitness for duty" issue are the additional rights to reinstatement which may accrue under Americans With Disabilities Act or California's Fair Employment & Housing Act. If the employee can perform the "essential functions" of a position with or without "reasonable accommodation," unless the reinstatement would cause "undue hardship" or constitute a "direct threat" to the health and safety of co-workers, the employee is entitled to return to work (even if it risks the employee's own health).
After receipt of evidence of fitness to return to duty, the employee's failure to return to work can constitute job abandonment, which is a legitimate ground for termination of employment.
General Guideline and Warning
Considering the expense associated with answering a charge of discrimination/violation of Labor Code §132a and the wide breadth of interpretation of this employee protection statute, you must be circumspect and cautious about taking any adverse action against an employee who is on worker's compensation leave, unless there is substantial written evidence of job related reasons for discharging, demoting or transferring the employee, etc.
EMPLOYEE "TIME OFF" RIGHTS
QUESTION:
I know leaves of absence are required for pregnancy disability, work-related injuries and family care but should I be aware of any other "time off" rules?
ANSWER:
California employees have numerous "time off" rights, the violation of which can subject an employer to potential liability.
In addition to pregnancy, work-related injury and family care, mandatory "time off" is required under state and federal law for:
A. Jury duty;
B. Voting;
C. Participation in school activities with a child;
D. Military service; and
E. Emergency duty as a volunteer firefighter.
On a voluntary basis many employers have adopted policies permitting "time off" for a different situations including:
A. Personal leaves of absence;
B. Disability leave beyond that required by law; and
C. Bereavement leave.
Jury Duty. An employer may not discharge or discriminate against an employee who is required to serve on a jury. Many employers, as a civic duty, continue to pay their employees while serving on a jury. An employer can offset any jury or witness duty pay received by the employee against required salary payments to the employee.
Voting. If an employee does not have sufficient time outside of working hours to vote in a statewide election, up to two hours of working time may be taken, without loss of pay. Such time must be at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from working. Employees may serve as election officials on Election Day without being disciplined, but the employer is not required to pay them for such absences. Arrangements for voting time must be made at least two days in advance, unless otherwise mutually agreed.
School Visits and Activities. If an employee's child has been suspended from school the employee must be allowed time off, if requested, to appear at the school in connection with the suspension. The time off may be unpaid or paid in the employer's discretion. The employee is required to give reasonable notice to the employer of the request.
An employer of 25 or more employees at the same location is required to allow an employee who has a child in elementary school up to 40 hours off per school year for the purpose of participating in school activities. The time off may be paid or unpaid at the employer's discretion. Likewise, the employee may be limited to no more than eight hours off in any one calendar month of the school year. The employee may be required to use accrued vacation, personal leave or compensatory time off for this purpose. An employer may require documentation from the school as proof that the employee participated in the school activity on a specific date and at a specific time.
Emergency Duty as a Firefighter. Employees required to perform emergency duty as a volunteer firefighter are entitled to a leave of absence but the employer is not required to pay the employee during time off.
Military Leave. Under the Veterans' Reemployment Rights law an employee who leaves a civilian job to enter active duty in the United States Armed Forces (voluntarily or involuntarily) is entitled to return to the civilian job after discharge if several eligibility criteria are satisfied. Returning veterans have an absolute right to their former jobs regardless of whether they were replaced. Seniority and benefits accrue during the military leave. Wages must reflect any increases the employee would have received if he or she had continuously been employed. Returning military leave employees may not be treated as new employees with regard to health insurance plan waiting periods or preexisting conditions.
A re-employed veteran cannot be discharged without cause for one year after re-employment.
Employees who are reservists or members of the National Guard must be granted a leave of absence for the period required to perform active duty for training or inactive duty training drills and may not be discriminated against. An employer has no right to deny the request or to veto the timing of the military training since timing, frequency and duration of the military training are determined by the military authorities. A reservist or National Guard member is not required to submit written training orders when he or she requests a military leave of absence because clerical problems within the military sometimes prevent written orders from being issued until shortly before the training is to start or even after it has started.
Bereavement Leave. An employer has absolute discretion whether to grant bereavement leave since there are no federal or state laws guaranteeing bereavement or funeral leave. Many companies allow employees to take this type of leave as sick leave or as unpaid leave. If a policy has been adopted by a company it should be carefully followed.
Personal Leaves of Absence. Employees are not entitled to take leaves of absence for personal reasons unless a policy is adopted by the company or other arrangements are made on a case-by-case basis. Granting a personal leave for one employee sets a precedent for other employees and creates a potential for discrimination claims if personal leave policy is not administered evenhandedly.
Disability Beyond Legally Mandated Leaves. Except in those cases where leaves for disability are required by law (e.g., pregnancy disability leave, family leave, workers' compensation) an employer has no obligation to hold a job for an individual with a non-work-related disability. Any leave for a non-work-related disability beyond what is required by law is a matter solely between the employer and the employee. Good practice suggests that company policy should specify precisely what leave is available and what benefits if any will be continued during such a leave. As in the case of personal leaves of absence, granting disability leave beyond legally required limits for one employee sets a precedent for other employees and creates a potential for discrimination claims when one employee is denied such a leave in the future.
CONCLUSION
A carefully drafted personnel policy which is updated from time-to-time will provide guidance to the employee and serve as "loss prevention" for the employer. Up-to-date posters required by law are good way for management as well as employees to keep informed. Currently, the trend in the law is toward increasing "time off" rights and employers should carefully evaluate any request for leave even if the reasons for the request initially seem unfamiliar. |
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