HR Base Camp Roundup – March 29th, 2022

This week in HR Base Camp and CEDR’s HR Solution Center, we heard about multiple employees quitting by text message. We also answered questions about leaves of absence and terminating a new employee who was frequently absent due to a family emergency. Here are our top HR Q&As from the past week:

  1. What should I do when an employee resigns by text message?
  2. Do I have to hold a position for an employee who is out on maternity leave? What if the employee hasn’t been clear about when they will return?
  3. Can I terminate a new employee who is out of work frequently due to family medical issues?

 
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What should I do when an employee resigns by text message?

Multiple employers reached out to the HR Solution Center for help addressing situations in which an employee sent a text message to their supervisor announcing their intention to resign effective immediately.

Answer: No one can expect to be prepared for a situation in which an employee walks off the job without notice. Unfortunately, abrupt quits by text message are an increasingly common problem for employers based on what we’re hearing in the CEDR Solution Center. That being the case, we thought it warranted a brief discussion of how to handle this situation should it ever come up at your business.

First off, resist the urge to react emotionally. Keep your interaction brief and professional. You can respond to the message with something simple like, “I am in receipt of your text and accept your immediate resignation effective <date>. We will be mailing you a copy of your separation documents.” Make sure you save a screenshot of all of these text communications for your records.

You will then need to begin the process of ending that person’s employment with your business. Start by sending them their relevant separation documents by mail, including a Confirmation of Resignation Letter, a blank Exit Interview Form (you can download a free Exit Interview Form from CEDR here), as well as information about termination of health benefits, possible extended COBRA coverage, and their final paycheck. You may also want to send a copy of the termination documents (including a copy of their final pay stub) to the employee by email to give them access to this information sooner.

Note that some states have very specific laws about how and when final paychecks must be delivered. You will need to make sure you are adhering to these laws when severing a working relationship with a former employee. Federal law allows you to issue the final paycheck in accordance with your regular payroll schedule, but many states require that you issue those funds sooner.

Though resignations are usually the easiest form of separation an employer can face, no separation is without risk. If you have any questions about final pay laws in your state, or about minimizing your risk and making sure all of your legal bases are covered when separating from an employee, reach out to an HR expert for help.

For more general guidance on employee separations, download our free Separation Guide here.
 

Sometimes the right thing to do is say goodbye. Click to download CEDR's free separation guide.
 

Do I have to hold a position for an employee who is out on maternity leave? What if the employee hasn’t been clear about when they will return?

An employer was stretched thin with a high-production employee out on maternity leave. The employee was vague about their expected date of return and the employer was wondering if they had to keep that position open while the employee was away.

Answer: Though we can offer some general advice on this topic, the actual answer to how this situation should be handled at your business will ultimately come down to what local laws say in your state, how many employees you have, and what the Leave of Absence Policy in your employee handbook says.

First, it’s important to note that your employee handbook should be very clear on your office’s policies and protocols for various leaves of absence, including how much leave employees are able to request, whether that leave will be paid or unpaid, if employees are eligible or required to use paid time off benefits during leave, as well as the process for reinstatement when that leave ends. You should also make sure your employees read and sign your handbook to acknowledge and signify their understanding of those policies.

If your employee handbook was made by CEDR’s Solution Center, the policies and protocols for leave of absence requests are spelled out in detail. They are also crafted by HR professionals to adhere to the federal, state, and local laws that apply to you, and to reflect your business’ preferences wherever laws don’t dictate how a specific type of leave must be handled. Keep in mind that which laws apply depends on how many employees you have, so be sure to let the CEDR team know when this changes. If you have questions about the leave laws in your state or want to talk about updating your employee handbook, contact a CEDR HR professional for guidance or reach out in our private Facebook Group.

Second, employees should always be required to provide an expected date of return when they request a leave of absence for any reason. You may mutually agree to revisit that return date if it becomes unfeasible during the course of that leave, but leaving a return date completely open is never a good idea from an HR perspective.

When an employee requests a leave of absence, you can ask them to fill out this free Leave of Absence Form crafted by our Solution Center team. 

Now, let’s discuss the legal considerations of this question. 

Federal pregnancy protections require that you hold the employee’s position for them while they are out on maternity leave. This doesn’t mean that you can’t hire someone in the interim to fill their role, but it does mean the employee must be allowed to come back to the same position (or one that is equivalent) when the leave is over. 

If your employee continues to refuse to provide a concrete date of return, reach out to an HR expert to ensure your business is protected while you navigate this sensitive issue.
 

Click here to download your free leave of absence request form from CEDR.

 

Can I terminate a new employee who is out of work frequently due to family medical issues?

A small medical practice hired a new employee who began taking large amounts of time off due to a family emergency. These absences culminated in a prolonged leave of absence early in their employment. The employer wanted to know if it was okay to terminate this employee and, if so, how to go about doing so in a way that minimizes their risk.

Answer: This is admittedly a tough situation. However, we know it’s not ideal to have an employee that is consistently absent and the issue does need to be addressed.

Let’s start with the question of legal considerations. The main thing to consider here is if the employee has used any state protected leave to cover these absences. This is unlikely in this situation since they have only been in their role for a brief period, but it’s something to be aware of. 

Many of the states that have protected leave allow employees to use it to care for family members that are ill. If no state protections apply, then you should refer to your handbook policy. Do you offer any sort of time-off benefits that the employee is already eligible for? Again, this is probably not likely if the employee has only been in place for a short amount of time. So, if your handbook policy doesn’t apply, you have a lot of discretion as to how to handle the situation.

It’s typically less risky to terminate sooner rather than later if you know things aren’t working out. However, since a leave was already granted to the employee in this case, we recommend honoring the leave and reassessing the situation upon their expected return. Once the employee comes back to work, you can let them know that you need them to work the schedule they were hired to work and, if that’s not possible, you will accept their resignation. Here is a link to a free Voluntary Resignation Form you can use, should you need it.

If the employee stays and their attendance and performance continue to suffer, you have a few options. You could issue a corrective action or final written warning and continue to monitor things (we provide a free Corrective Action Form you can download here). You could also terminate with no warning if their performance is really bad, but it’s important to remember that all terminations carry some legal risk, so you would want to conduct a thorough risk assessment prior to terminating. This is something the HR experts in our Solution Center can help you with.

As far as unemployment goes, your former employee can apply for it whether they are terminated or they resign. Whether or not the employee receives unemployment payments will be completely up to your state’s unemployment board. It’s worth noting that asking someone to resign is basically the same as a termination and will likely result in the employee being eligible for unemployment benefits.

For more guidance on ending your employment relationship with an employee, our free Separation Guide is a great resource. It includes a free Termination Checklist you can use to make sure you’ve got all of your ducks in a row before letting an employee go.

If you have any more questions about your risk during a termination or need guidance getting employee separation right, contact a CEDR HR professional for guidance or reach out in our private Facebook Group.
 
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Mar 28, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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