Defending the Right to Maintain Workplace Flexibility

Date: February 22, 2019

Small business owners struggle every day to ensure compliance with an ever-growing thicket of federal, state and local regulation. Indeed, regulatory issues are especially complicated in the realm of employment law, as employers must routinely make time sensitive decisions on staffing issues. Moreover, the typical small businesses owner is left to sort out these thorny issues without expert assistance from a trained HR professional (much less an in-house attorney). That’s daunting given the risk of lawsuits or other penalties if they should make a mistake—even a good faith mistake. And that is especially true when it comes to managing leave of absence issues.

We’ve warned in the past that employers need to be especially careful when contemplating terminating an employee who is out on medical leave. But now a lawsuit threatens to make life even more difficult for small businesses in Hawaii. In Josue v. BCI Coca-Cola, the Hawaii Supreme Court is set to decide whether employers must hold-open an injured employee’s position even if their extended and indefinite absence is imposing serious strain and practical problems for the company.

Here an injured employee was out of work for near eleven months after being injured on the job. During this time she could not say whether or when she would be able to return to work. But someone had to handle her workload. So, in her absence, two of her coworkers were forced to work longer hours until finally the company decided it needed to bring in a full-time replacement.

These difficulties are all the more pressing for companies with fewer employees. For a small business, a single employee’s absence can cause serious strain forcing other employees to work longer hours. The situation is all the more difficult if the absentee employee has special skills or expertise because there may not be anyone else on the team capable of doing their work.

An extended and indefinite absence can also cause serious morale issues. Not only must a company pay overtime wages when their staff is working longer hours to cover for an absentee employee, but they risk burning out good workers. Overburdened workers are more likely to make mistakes, to be injured on the job, or to become upset with their working conditions—which means they are more likely to jump ship, or to begin agitating for unionization. So small employers often find themselves in a catch-22 in these situations. They fear a lawsuit if they should bring on a replacement, but they cannot maintain operations indefinitely with an absentee employee—especially where they are still stuck paying for their benefits.

In this case the plaintiff argues that the company should have just hired a temporary employee, and held open her position indefinitely until she was capable of returning to work—however long that might be. But, it is not always possible to find a motivated and competent temporary employee. The reality is that its difficult to find top-talent when the job comes with a contingent expiration date. So that sort of rule would put employers in a very difficult position.

Our amicus brief to the Hawaii Supreme Court argues that employers are not required to create a job that does not exist, or to hold open a job indefinitely where an extended and indefinite leave of absence is causing major problems for the company. We maintain that Hawaii employers should be required only to give reasonable accommodations to an injured employee—consistent with the standard established by the Americans with Disabilities Act. That rule would allow employers to address pressing staffing needs and to hire a replacement if an extended absence is causing “undue burdens.” It may be that the employer must provide “other available work” if the employee is capable; however, that does not mean the employee’s job is protected as a permanent entitlement.

For more guidance on these issues, check-out our previous commentary: Terminating an Employee on Medical Leave? Tread Carefully.

Related Content: Legal - Blog | Management

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