There are numerous unpredictable events that arise in the workplace. Employers often need to manage their employees’ needs for time off. Perhaps a leave of absence might be due to a serious health condition or family emergency, but what if the time off is necessary because the employee was arrested? These are tricky situations. How should employers handle a situation where an employee has been arrested, maybe even be incarcerated, but has not yet been convicted?
Q: How do we handle absences related to arrest and incarceration, prior to a conviction?
A: It depends. Here are a few things to consider:
- How does your attendance policy read? The employee has not been convicted, so refer to your attendance policy and past practice. In doing this, depending on your policy, the absences may be considered unexcused.
- Do you allow personal leaves or have a policy that might afford the employee a leave? If yes, you should be consistent in this practice and follow your usual process.
- Does the employee have paid time off benefits available to use? If yes, check your policy. Allow the employee to use these benefits, if your policy allows for the time to be covered.
- Is there another option while waiting for details? An unpaid suspension may be necessary, while you wait for their arrest to be dispositioned.
Q: What if the employee is not incarcerated but the nature of the arrest has a definitive or potentially significant impact to the job or on the organization?
A: Seek legal counsel. Again, the employee has not been convicted, so treating the employee as though they were convicted is not advised. There may be situations, however, where there is a perceived threat to your business and/or your employees. It is possible that a temporary suspension or leave may be necessary, until the case is resolved. Your employment attorney can help make this determination, or reexamine your current policies and procedures and advise on other options.
Q: The employee has been acquitted, now what?
A: The employee was found to be innocent in the eyes of the court and should be treated as innocent in the eyes of the employer. Assuming the employee has not been terminated (e.g., due to attendance violations), the employee should be reinstated. Employers need to ensure the employee is returned to an environment that is free of discrimination or harassment. Therefore, it is also recommended that supervisors and managers be made aware of the employee’s rights to reinstatement with the guidance to follow up with HR, if any issues arise. If the employee has been terminated, follow your normal policies and procedures with regards to eligibility for rehire.
Q: What if the employee has been convicted?
A: Assuming the employee has not been terminated and the conviction would normally prohibit employment, the employee could be terminated. Legal guidance is recommended before reinstating or terminating a current employee convicted of a crime.