Investigations, Safety Risks Result in Involuntary Leave

Allen Smith, J.D. By Allen Smith, J.D. April 13, 2021
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​Placing an employee on administrative leave should be done sparingly but may be appropriate during an investigation or if an employee poses a direct threat to health or safety.

"Employers should fully appreciate the implications associated with an involuntary leave, whether it's a stigma to a wrongfully accused employee who was placed on a leave during an investigation or a message to alleged victims that the employer has taken prompt action against the accused individual as a means to temporarily de-escalate a situation," said Renee Inomata and Stéphanie Smith, attorneys with Casner & Edwards in Boston, in an e-mail.

Employers have an affirmative obligation to maintain a safe work environment for employees, noted Ellen Bronchetti, an attorney with McDermott Will & Emery in San Francisco.

If an employee is behaving erratically and the employer believes that the conduct is creating a safety risk for the employee or his or her co-workers, the employer should act immediately, she said. "In many cases, that involves placing the employee on an involuntary leave."

Investigations

Often, an employer places an employee on involuntary leave to conduct a thorough investigation and determine if discipline should be imposed, Bronchetti said. The length of the leave should be dictated by what needs to be done to conduct the investigation, she added.

"Employers should consider having policies in place that contemplate when an employee will automatically be placed on an involuntary leave, such as for allegations of harassment, violence, or dangerous or unsafe workplace conduct that can threaten the safety of others," she said.

Inomata and Smith said involuntary leave may be appropriate if continuing to work would allow the employee to continue engaging in misconduct, such as:

  • During the investigation of embezzlement or improper disclosure of trade secrets.
  • Where the employee has been accused of harassing a co-worker and may be tempted to continue such harassment or retaliate against the co-worker for having complained about harassment.

If an accused employee is a union member, the employer's ability to place him or her on involuntary leave may be limited, they cautioned. "In a union setting, the employer should follow the applicable collective bargaining agreement and work with the union representative to ensure that any disciplinary action is consistent with the terms of the collective bargaining agreement," they said.

Employers shouldn't place the alleged victim or complainant on involuntary leave, Inomata and Smith cautioned. "Surprisingly, this still remains a common practice, especially where an employee complains that her supervisor or a senior executive sexually harassed her," they said. "Unilaterally placing the alleged victim on leave may lead to claims of retaliation."

Employers should instead consider placing the alleged harasser on leave or find an alternative way to let the alleged victim continue to work without the threat or fear of retaliation or further harassment. "Before proceeding, employers would be well-advised to discuss possible alternative workplace arrangements with the complaining employee and agree on a course of action," they said.

If involuntary leave is imposed while an investigation is pending, it may be best to pay the accused employee during the leave, Inomata and Smith added. "If the employee is later determined not to have engaged in any misconduct, then the employee may feel harmed if the employee lost out on working time because of a false accusation," in addition to facing a negative stigma as he or she re-enters the workplace.

In a union setting, involuntary leave almost always is paid but there are limited exceptions when an employee is, for example, arrested for violence or a sexual assault, said Linda Bond Edwards, an attorney with Rumberger Kirk in Tallahassee, Fla. A worker who is cleared of criminal activity may be returned to the job with back pay, she said.


Listen to the full interview:

Linda Bond Edwards, an attorney with Rumberger Kirk, joins SHRM Online's Allen Smith to talk about administrative leave.


 

Safety Risks

An involuntary leave is the most sensible option when an employee appears unable to perform the duties of his or her job, if a worker is a threat to his or her own safety or to the safety of others, or if an employee's continued presence in the workplace could compromise an investigation into alleged misconduct, Bronchetti said.

Be mindful of privacy concerns, such as with psychological conditions that pose a direct threat and lead to an involuntary leave, Inomata and Smith said.

Moreover, employers should approach involuntary leave cautiously even when an employee behaves erratically, said Nathaniel Glasser, an attorney with Epstein Becker Green in Washington, D.C.

"In the case of an employee who may exhibit psychological problems, employers cannot take adverse action, such as placing an employee on leave, for that reason alone," he cautioned.

The Americans with Disabilities Act prohibits employers from placing an employee with a disability on involuntary leave unless that worker poses a "direct threat"—that is, a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

Glasser said that before deciding to place an employee on an involuntary leave due to erratic behavior, the employer first must determine whether the worker poses a direct threat by considering:

  • The duration of the risk.
  • The nature and severity of the potential harm.
  • The likelihood and imminence of potential harm.

"If the employer makes a determination—based on objective, factual information rather than subjective perceptions or irrational fears—that the employee poses a direct threat, the employer may place the individual on an involuntary leave," he said.

[SHRM members-only resource: Administrative Leave Policy]

Alternatives

An employer has options in the case of psychological conditions that pose a direct threat, Glasser noted, such as offering voluntary leave or referring the worker to the company's employee assistance program. Other alternatives in such cases include reductions in or changes to schedules and temporary removal of or changes to duties.

Glasser added, "In the case of misconduct, alternatives to involuntary leave may be written warnings; transfers or changes in duties, position or reporting relationships; last-chance agreements; or even termination."


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