DEAR CARRIE: My sister is having a hip replaced in a few weeks. Her supervisor told her that if she didn’t return after 12 weeks the company could let her go. She couldn’t believe it. Some workplaces wait a full year before deciding how to handle someone out on disability. Twelve weeks seem like an awfully short time to make such an important decision. What if she experiences some complications? Can the company legally fire her if she is unable to return after 12 weeks? — Hip and Job Replacement?
DEAR HIP: I hope the person who delivered the stark news at least wished your sister a safe recovery because she certainly insinuated that it had better be a speedy one.
Speaking of speed, the supervisor may have jumped to conclusions by seemingly basing her remarks solely on time off under the Family and Medical Leave Act, which grants eligible employees up to 12 week of unpaid leave for family or personal health emergencies.
“The employer seems to be focusing on the FMLA,” said Richard Kass of Bond, Schoeneck & King in Manhattan. “However, FMLA is not the only law that comes into play.”
The federal Americans With Disabilities Act and New York State human-rights laws could also figure into the equation, he said.
“Under federal and state laws that prohibit disability discrimination, the employer may have an obligation to allow the employee to take a leave of absence for more than 12 weeks, unless the employer can show that a leave of that length would cause it ‘undue hardship,’” Kass said.
How is “undue hardship” defined?
“There is no clear-cut rule as to what constitutes an undue hardship,” Kass said. “It depends on a number of factors, including how easy it would be to hire a temporary employee who can fulfill the same functions, how long it would take to hire a permanent replacement, how much longer than 12 weeks the employee will need and whether an extended leave of absence would cost the employer money or would cause inconvenience to her coworkers.”
By the numbers: The FMLA generally applies to employers with at least 50 employees; the ADA and New York human-rights laws have much lower thresholds. The ADA covers companies with at least 15 employees and the state human-rights laws apply to companies with at least four employees.
DEAR CARRIE: My husband and I both work for a family-owned company that recently sold half of its ownership to a private investment company. We were told there would be no changes. Ha! When we were hired way back when, our offer letters promised that we would receive two bonuses a year, if profitability permitted it. That has now been changed to once a year. Is the change legal? Also, all salaried and hourly employees in the company have received cost-of-living increases, except the facilities department, where my husband works. Is it legal to give a COLA to one department and not to another? — The Un-COLA
DEAR UN-COLA: Since companies aren’t mandated to give out bonuses or COLAs, employers can decide how often to award them and to whom, as long as the decision doesn’t have the effect of discriminating against a group of workers on the basis of such factors as age, gender or race. Does it make sense to have a split policy? Probably not. But it sounds legal.