Q&A: Know how to handle time off request after discipline – Technologist

Question: The day after a disciplinary meeting, an employee called in to say she needs four weeks off due to stress. What can we do?

Answer: Unfortunately, this type of request is becoming more common. Start by assessing protected leave rights and then figure out how to address the employee’s performance upon return from work.

FMLA leave: If the employee is eligible for leave under the federal Family and Medical Leave Act (FMLA), send the appropriate paperwork, where you can state that you are granting the leave conditionally, subject to the employee providing medical certification of a serious health condition. (Note: If the employee is also eligible for leave under the California Family Rights Act (CFRA), you should use a state-specific medical certification form, as explained below.)

Paid sick leave: If the employee is eligible for paid sick leave under state or local law, follow your normal procedures to process paid sick leave. See our Legal Guides, Paid Sick Leave Laws: California, Oregon, Washington and Federal, Paid Sick Leave Laws: California Local Ordinances, and Paid Sick Leave Laws: Washington State and Local Ordinances.

California medical leave rights: If the employee is eligible for leave under CFRA, you can add “CFRA” to the FMLA notices, but you should only use the CFRA medical certification form, which unlike the FMLA form doesn’t ask for a diagnosis, consistent with CFRA restrictions.

Oregon medical leave rights: In Oregon, as of July 1, 2024, an employee’s serious health condition is only covered by Paid Leave Oregon (PLO), not by the Oregon Family Leave Act (OFLA). You should notify the employee that if she applies with the Oregon Employment Department for leave under Paid Leave Oregon and is approved, her time off is authorized under PLO (although she has reinstatement rights only if she was employed for at least 90 days before the leave began). See our Legal Guide, Oregon: Paid Leave Oregon, and Model Policy, Oregon: Paid Leave Oregon Policy.

Washington medical leave rights: Time off for a serious health condition is covered by the Washington Paid Family and Medical Leave (WPFML) law. You should notify the employee that she can apply for WPFML with the Employment Security Department to authorize her time off (although she has reinstatement rights only if you employ at least 50 employees and the employee has been employed with you for at least 12 months and has worked at least 1,250 hours). See our Model Policy, Washington Paid Family and Medical Leave Policy.

Disability leave: If the employee isn’t eligible for protected leave or has exhausted it, you should consider whether she may have a disability covered under the Americans with Disabilities Act (ADA) or state law, and if so, whether a leave of absence would be a reasonable accommodation for her disability. Talk with your Vigilant Law Group employment attorney and tailor our Model Form, ADA: Letter to Health Care Provider, to evaluate the employee’s need for leave.

Performance management: When the leave designations have been resolved, it’s time to return to the performance issues that precipitated the employee’s stress claim. You have a right to hold her to your legitimate job-related performance expectations, as long as you apply them equally to similarly situated employees. However, you may need to consider reasonable accommodations that would allow her to perform the essential functions of the job. It’s also wise to review how performance concerns are raised—your ability to defend your position can depend on whether a concern was handled with professionalism, discussed personally with the employee, and followed up with a written summary. If the employee keeps alleging she cannot work due to stress when performance issues are brought to her attention, eventually she will either run out of leave or the time off will become an undue hardship to your organization under the ADA. Your Vigilant Law Group employment attorney can help you navigate these issues.