Do I Have to Hold a Job for an Employee?

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Question: A female clerical employee develops a personal family problem and later becomes ill. Several months later, when her job has been filled by another and there is no job opening for her, should she return, and are we required to officially advise her that there is no possibility of employing her? At this point in time we do not know when she would return. And is there a statute of limitation for collecting unemployment?

Answer: It appears from the question that the employee has been away from work for an extended period. Has the employee been kept on the payroll ever since then? Has she continued to be enrolled on the company’s health plan? As we tell employers, once it becomes clear an employee is not going to be able to return to work for an extended time, if ever, it’s best to go ahead and separate the employee from employment. (This applies even in the case of absence from work due to a work-related injury where the employee is receiving workers compensation benefits.) Otherwise, the company continues to incur the costs of benefits and possibly creates an expectation on the part of the employee that in effect he or she has been granted indefinite leave. Termination assumes, of course, that the employee hasn’t requested FMLA leave (and eligibility for FMLA depends on the size of the company and how long the employee has been employed by the company). Here, it doesn’t appear that the employee has been on any formal leave. Under these circumstances, the company should let the employee know that her position has been filled and take her off the payroll. Otherwise, it could be that the employee assumes she can return whenever she’s able.

As for collecting unemployment, although there is no statute of limitations as such, one of the criteria for eligibility is availability for work. If this employee has been unable to work, she is not eligible for unemployment compensation. If she returns to the workforce and later loses a subsequent job through no fault of her own, she may regain eligibility and it is possible, depending on when this would happen, that a portion of her benefits could be charged to this company’s account.

DISCLAIMER
This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at brooke.duncan@arlaw.com.

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