Determining when to terminate an employee on a leave of absence for medical reasons is a challenge under any circumstances. No “inflexible” rules can be applied, not even “equal treatment.”  As part of its deliberations, an employer must make an individualized assessment to determine if, when, and under what circumstances an employee can return to work. A National Labor Relations Board decision illustrates how that challenge can be even greater in a unionized workforce. 

In Hostess Brands Corporation, 359 NLRB No. 26 (December 3, 2012), the union sent the company a written request asking it to provide  ”..when or if the company will pursue termination on each [employee currently on workers’ compensation].” While the employer did not respond at all, in most workplaces, providing a substantive response would require gazing into a crystal ball.  The NLRB held that the information the union sought “was necessary for and relevant to the Union’s performance of its duties as the exclusive collective bargaining representative of the unit” and the company violated the National Labor Relations Act by not providing it.