Terminating Employees Who Are Out of Leave

Q: Can We Terminate an Employee Who Has Exhausted All Leave?

A: It depends. Districts that have adopted and consistently apply a neutral absence control policy have taken the first step in defending against claims that they have terminated employees for impermissible reasons.

A neutral absence policy is one applied to employees across the board, regardless of their personal circumstances. Districts that adopt and consistently apply neutral absence control policies can terminate an employee who exhausts all leave providing they can demonstrate that the decision wasn’t made for a prohibited reason (e.g., taking leave under FMLA).

The key to implementing this type of policy is that the district must treat everyone the same, including the employee who has no accumulated leave, has exhausted FML and temporary disability leave, or the long-term employee who is unable to return to work because of a terminal illness. In other words, the district must routinely terminate every employee who has exhausted all leave, including contract employees. However, before taking action to end employment, the district must ensure a reasonable accommodation under the Americans with Disabilities Act (ADA) is not required.

Be warned that consistent application of the policy won’t always be easy and requires unwavering commitment on the district’s part. But consistency is imperative if the district wants to keep employee leave time under control and stay out of court. TASB recommends districts that want to put such a policy in place work on it with their school attorney.

Best Practices for Managing Leave

When an employee is approaching the end of the approved leave period, it is advisable to communicate with the employee to determine his or her ability to return to work. This can be done by mail, over the phone, or by email. The intent is to give the employee notice the leave is coming to an end and outline the steps required to return to work (e.g., present a release or medical certification from the employee’s health care provider). An explanation of what will happen if the employee is unable to return should also be addressed, including the timeframe for filling the position and processing termination.

As mentioned above, the district must consider the need to provide an accommodation under the ADA before an employee is terminated, which may include providing additional unpaid leave. Unlimited leave is not reasonable, but providing additional time so the employee can return to work may be reasonable. For example, an employee with a disability presents a medical certification stating he or she would be released to full duty two weeks after the last day of approved temporary disability. Granting an additional two weeks would be a reasonable accommodation.