Ask any HR professional about the workplace issues that create some of the biggest job-related headaches, and managing leaves of absence will most likely be at the top of the list.
Because the interplay of three major employment laws—the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and workers' compensation—is so complicated and fraught with problems, these three laws are often referred to as the Bermuda Triangle of employment law. Given that the majority of absences are related to the injury or illness of employees or their family members, one, two or all three of these laws may be applicable to an absence.
Leave of absence issues create many questions for HR, including:
- When are we required to begin a discussion about accommodations?
- How do you know if an employee is entitled to an accommodation?
- What if the accommodation violates company rules or costs the company money?
- Can we force the employee to use paid time off first?
- Can we dock pay for exempt workers?
There’s much to learn about leaves of absence, and every case will have its own nuances and challenges. For instance, what happens when the FMLA and the ADA overlap? In the post "Firing a Sick Employee Just Before She is FMLA-Eligible is Very Risky," employment attorney Eric B. Meyer writes:
“If you're dealing with an employee who seeks FMLA leave for his/her own serious health condition, even if the employee will run out of accrued time off before becoming FMLA-eligible, firing that employee could run afoul of the Americans with Disabilities Act. The ADA requires reasonable accommodations for employees with disabilities. And since many serious health conditions qualify as disabilities, too, time off may be a reasonable accommodation.”
And what if you have an employee who seeks that time off for a condition that she claims impacts her ability to work? In the post “Does an Employee Have an ADA ‘Disability’ if it Substantially Limits the Major Life Activity of ‘Working’?”, Meyer writes that “the EEOC [Equal Employment Opportunity Commission] determined that in this particular case, the plaintiff only claimed that her PTSD impacted her ability to perform a single job—not her ability to perform a class of jobs or broad range of jobs in various classes. Therefore, she didn’t have a ‘disability’ under the ADA. And without a disability, she has no viable claim under the ADA.”
These two cases illustrate why and how information, education and supervisor training can help employers better understand leave of absence management and better care for their employees while avoiding costly lawsuits and mistakes.
How are you managing leaves of absence at your workplace?
Please join @shrmnextchat at 3 p.m. ET on May 1 for #Nextchat with special guest Eric B. Meyer (@Eric_B_Meyer). We’ll discuss best practices that will help employers effectively administer leave while reducing liability.
Q1. As an employer, what FMLA and ADA issues do you struggle with the most?
Q2. What are common FMLA and ADA mistakes employers make?
Q3. How do you know if an accommodation would impose an undue hardship on your business? What are the qualifiers?
Q4. What factors help you to determine when you can deny an FMLA or ADA leave request?
Q5. What are the signs that an employee is abusing FMLA leave, and how can employers curb it?
Q6. What are some tips for how employers can effectively administer FMLA and ADA leaves to reduce liability?
Q7. What are some good training guidelines for managers and supervisors to help mitigate FMLA and ADA leave risk for employers?
Q8. How can employers improve their internal practices to avoid ADA-related complaints and legal action?
Attend Eric B. Meyer’s #SHRM19 mega session “My Employees Can Miss How Much Work?!: Managing the Challenges of Leave Under the FMLA and ADA” on Tuesday, June 25 at 7:15 a.m.
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