All you need to know about long-term medical leave: What you don't know can hurt you - DVM
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All you need to know about long-term medical leave: What you don't know can hurt you
Complaints, lawsuits can cripple veterinary practice owners who don't have a written medical-leave policy


DVM360 MAGAZINE


Wing it without a policy

What if you forget to do your homework? I have outlined the key issues that arise when an employee goes on a long medical leave so you are prepared in case you do not have a leave policy.

Staff morale backlash. Even if no one particularly liked the employee who was discharged after months on medical leave, that worker will usually be seen as a sacrificial lamb. As such, the other employees will begin to wonder what their fate would be under similar circumstances, which could cool the previously warm family environment. In the absence of a written policy, it is important to discuss the possibility of a long out-of-work period with the injured worker within a reasonable period after the event.

One way to handle the issue would be to explain to the employee that you are looking forward to his or her return and will try to keep the job open for "as long as we can but certainly for at least several more months?... " This serves as a tacit admission that the job eventually has to be filled by a permanent employee while giving you credit for keeping the return door open for the period you were intending anyway.

Improper discharge grounds. New legislation is creating new avenues for lawsuits by discharged employees. It is important to be aware of the more important pieces of legislation that could impact state and federal law.

Remember, it is not inherently illegal to fire someone because they have become too ill to work — many associate veterinarian contracts include such a provision in writing. On the other hand, while keeping that general rule in mind, there are many, many exceptions. As you read, keep asking yourself, "Can I prove that I handled this firing in the same way I would have handled firing any other employee in an identical situation?"

Terminating an employee for making a claim for workers' compensation. This is illegal and subjects the employer to a lawsuit and criminal prosecution. I don't mean it is illegal to fire someone who is on workers' compensation; rather, it is illegal to fire someone because they filed. The difference? You need to be able to prove that there was some other reason for the firing. Discharge for not being able to work for the foreseeable future is a business decision.

Firing for long-term absence for jury duty. This act violates public policy and is not permitted.

Discharging an employee on long-term medical leave when they are a member of a racial minority, over 50 years old, or a member of a specific religion. Obviously this is not a problem if the long-term medical leave employee is not in any of the "suspect categories." If they are in at least one of the categories, though, watch for the risk of a wrongful discharge lawsuit. If you almost never fire anyone, it is hard to prove that you would have fired a member of any ethnic group if he or she were too ill to work for the indefinite future. See? That's why you need a written policy...

Look into the law

In addition, it is important to familiarize yourself with the applicability of all statutes covering employees with medical issues.

1. Americans with Disabilities Act: Are you required to provide a reasonable accommodation to permit return to work?

2. Family Medical Leave Act: Are you in compliance if you discharge the employee when you elect to do so, or is it too soon?

3. More restrictive state disability laws (for example, California's Family Rights Act [CFRA] and the Pregnancy Disability Leave [PDL]): These laws may extend well beyond the time limits provided by federal statutes.

4. State-specific statutes: These statutes may include many more employers than federal law does (for example, California Fair Employment and Housing Act [FEHA], which applies to employers with as few as five employees).

Keeping these things in mind will minimize future problems. But your best bet is to put together a leave policy now and let all of your employees know about it.

Dr. Allen is president of the Associates in Veterinary Law P.C., which offers legal and consulting services to veterinarians. Call (607) 754-1510 or e-mail

For a complete list of articles by Dr. Allen, visit http://dvm360.com/law.


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Source: DVM360 MAGAZINE,
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