Dana Dobbins
By Dana Dobbins
Question: We have an employee whose essential functions require the use of their hands. They have requested an accommodation, and their physician has recommended time off until specific medical restrictions can be determined. What is our obligation to pay this employee during this doctor-recommended leave of absence?
Answer: Depending on your policies, you may allow or require the employee to use accrued paid vacation or sick leave towards their absence. Beyond paying appropriate sick leave and perhaps applying paid vacation leave, an employer is not otherwise required to pay an employee’s regular wages while the employee is on an extended medical leave of absence.
Specifically, under the Family Medical Leave Act (FMLA), an employer is not required to pay an employee on medical leave. The FMLA provides job-protected, but unpaid leave to eligible employees for up to twelve (12 weeks). However, sometimes an employer’s policies allow or require the employee to use accrued paid vacation or sick leave for some or all of this period. In this case, the employer would be providing some type of pay to the employee during the leave of absence. Be sure to review your policies to determine whether you allow or require employees to use some of their paid time off towards extended FMLA leave.
Further, some state laws provide paid medical leave, such as Colorado’s new Family and Medical Leave Insurance Program (FAMLI). However, this is a social insurance program through which the state (or other entity if you are self-insured) provides wages, and the employer pays into the program. Unless an employer’s policy provides otherwise, it is not responsible for providing salary or wages (or a wage differential) while an employee is on leave. Similarly, the employee might consider applying for short-term disability benefits. Again, however, this is an income replacement benefit, rather than wages paid to the employee by the employer.
Though you may not be required to pay an employee, keep in mind that an unpaid medical leave of absence can take a significant financial toll on an individual and their family, in additional to the physical and emotional toll the disability may also be taking. For this reason, allowing an employee to apply accrued paid vacation towards their medical leave may be beneficial.
Additionally, be mindful of your obligations to engage in a good faith interactive process with your employee now and after they return from the medical leave with specific restrictions. Consider whether there are vacant positions available that this employee might be able to perform. Invite the employee and his or her provider to suggest some reasonable accommodations. Most importantly, keep the dialogue open and encourage ongoing communication. You can always consult with an attorney if you need guidance concerning the interactive process. And, of course, you should strongly consider consulting with an attorney before you take any adverse action against this employee to ensure do not run afoul of the Americans with Disabilities Act.
