How long must I hold an employee’s position following a non-work related injury?

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How long must I hold an employee’s position following a non-work related injury?

I have an employee who was injured at home. It was not work related in any way. The employee is going to require substantial time off. Even upon returning, it is unlikely he will be able to fulfill his duties due to the physical demands of the job.

Asked on August 22, 2011 California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

There is no obligation to hold the employee's position while he or she cannot work--unless, that is, the employee either uses earned/accrued paid time off (e.g. sick or vacation time) and/or invokes protected leave, such as leave under the Family and Medical Leave Act ("FMLA"), if applicable. If the employee can cover the time out of work with paid time off or protected leave, then so long as he or she is doing so, the position must be held. If the employee, however, cannot or does not cover the time away from work in this fashion, an employer is under no obligation under law to  hold the position; i.e. if the employee doesn't show up for work for *any* reason not connected with the job itself (i.e. it would be different with a workplace injury), he or she may be terminated. So  with a non-workplace injury, you only need to hold the position for as long as the employee uses FMLA leave (if the company is covered and the employee eligible) and/or uses PTO.

If there's an employment contract guaranteeing leave, a return to work, etc., that would be a different story--then you need to honor the terms of the contract.


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