Inactive Status: A Creative Category for Managing Challenging Leave

By Lindsey Edwards

Risk and Safety Manager
FPI Management

Too often as leave managers we have a choice between two diverging paths with neither route leading to a successful outcome for all parties.

A decision that is substantiated by fact and completely legal under the Americans with Disabilities Act (ADA) can lead to exposure under workers’ compensation (WC) laws, or vice versa.

This dichotomy may vary slightly for different industries and employers, but just about every leave manager can say “we need more choices for managing complex cases.” This article describes one solution that FPI Management has developed for complex cases, and some of our outcomes over the last three years. FPI manages multi-family residential units, including market-rate and affordable housing, with 3,200 employees nationwide. FPI is a high-performance organization with a dynamic, decentralized workforce.

The leave management dichotomy is driven by a core conflict. It may be lawful under the ADA to terminate an employee who has exhausted Family and Medical Leave Act (FMLA) entitlement but continues to request undetermined leave, because undetermined leave is not an ADA reasonable accommodation. But if this employee also has an open WC claim, this termination may be interpreted as retaliatory or discriminatory under WC laws. Unfortunately, employment action under these circumstances often initiates representation and litigation, providing additional leverage for the plaintiff for increased claim settlement value for already litigated cases, and/or increases exposure to companion suits (in California, for example, a Labor Code 132a violation).

After struggles and experiments to identify the best practices contributing to positive outcomes for our company, we established a fresh new leave category that we call “inactive status.” Inactive status maintains an employee’s status as employed, but separates the employee from a position. The employee floats in a sort of suspended animation leave of absence until ready to return to work with or without an accommodation, temporarily or permanently, to an open and available position for which they are qualified.

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