Question: One of my employees broke her ankle during a weekend skiing trip. She has a note from her physician excusing her from work for the next 10 weeks. Am I required by law to hold her job open?
The answer to this question, for most dental offices in Arizona, is no. Since Arizona is an "at will employment state," there are no rules governing job security regarding an injury that occurs away from the workplace. That being said, if your dental office employs more than 50 people then the employer may be required to follow Federal Mandates under the Family Medical Leave Act, or FMLA. Here, an employer may be required to give an employee, who has worked for the employer for at least 12 months or 1250 hours during the 12 months before the leave, up to 12 weeks of unpaid leave for certain family and medical reasons. The employee would return to the same or a similar position when the leave is over.
Although not required to hold a position for an employee, it may be prudent for an employer to do so anyway. The question that should immediately pop into an employer's mind in this situation is, "Is the injured employee worth holding open the position?"
An employer should immediately evaluate the injured employee's worth to the practice. Is the employee a star performer who will be difficult to replace? Is he or she the "model" employee who receives well deserved, excellent job reviews every year? Does he or she have such rapport with the patient base that a permanent absence will affect the practice? How will the rest of the dental team work without this person?
Most employers have a pretty good idea regarding the performance of each team member. There are some that are so well suited for their office that they cannot imagine working without them. There are other employees that do not seem to meld, may be inept in various situations, and the employer spends many hours thinking that it would be nice if a more competent worker could only replace them.
For the employee who is competent, and would be sorely missed, hold open the position until he or she is well enough to work again. For the employee who is not up to par, replace him or her.
In addition, because Arizona is an "at will employment state," it is possible for an employer to retain one employee and not another. Following the rules in Arizona, it does not matter if a precedent has been set within an office. For example, regarding the original question, two employees could have been on the same skiing excursion, both equally injured, but the employer has the option of retaining only one employee. However, managing this scenario in your office, is not recommended.
When an employee must take an unpaid Leave of Absence, whether it be for a broken ankle, maternity, or caring for a seriously sick child/family member, there are ways to diminish the financial hardship to your employee. Earned but unused paid time off in the form of sick pay and/or vacation pay should be used first. Some employers feel compelled to grant unearned, future vacation pay to an employee who is in good standing with the office (tenured, trustworthy) however this is not recommended. Not only may the employee never return to work and therefore the money is not "recouped", burn-out is high without some vacation/time away from the work environment if the employee does return to work.
In the event of an injury, one may consider asking for certification from the physician that details the date when the health condition started, the length of time the condition is likely to last, diagnosis of the condition, treatment prescribed, and whether inpatient treatment is required. You are free to decide when to ask for a certificate, but maintain a uniform policy; don't be selective concerning the event or the person, it may lead to discrimination issues later. Since most people are honest, the simplest and legally safest policy is an honor system in which you accept employee's statements at face value. Finally, ask for a final written statement from the physician that the employee is cleared for work and if there are any restrictions prior to commencing employment.
With this issue and others that may occur in the practice, double check the practice's Personnel Policy Manual and be sure a fair and sensible policy for a leave of absence is in place. Accidents happen, and we must be proactive in warding off problems that may result from such events.
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