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From workers’ comp to part time: Can we reduce employee’s leave benefits?

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in Discrimination and Harassment,Human Resources

Q. We have an employee who was out on workers’ comp and has recently returned to work part time. (She is still collecting partial workers’ comp benefits.) Can we adjust her vacation and personal leave time to reflect the limited hours she’s working, or is she entitled to the full amount of days?

A. It depends on whether your other part-time employees receive fewer vacation and personal days than full-time employees. If they do, treat this employee the same way. It is not advisable to reduce her leave time if that’s not consistent with how you treat other part-timers.

Be aware that decreasing the amount of vacation/personal time to which the employee is entitled could spur a workers’ compensation retaliation claim. She could allege the decrease was in retaliation for her pursuit of a workers’ compensation claim. If the reduction in vacation and personal time is consistent with your policy or practices for other part-time employees, you should have a strong defense to a retaliation claim.

Another issue to be mindful of is the risk of a disability discrimination claim under the ADA. If the employee’s injury constitutes a disability under the ADA, reducing the employee’s vacation and personal time could give rise to a disability discrimination claim if other nondisabled part-time employees are treated differently.

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