24 May Leave-of-Absence Issues Managers Need to Know
By Linda Hollinshead – law.com
In many organizations, the human resources function is handled by specialists who guide managers’ decision-making to ensure consistency with myriad employment laws. It is not uncommon, however, for HR professionals to get involved in the decision-making process only after a manager has implemented an employment decision creating potential liability. The result? The employer either assumes the potential risk or the HR professional has to contradict the manager’s decision, leaving the manager feeling unsupported and perceiving HR as a constraint on his or her authority.
To counter this internal conflict and reduce legal risk, organizations must educate their managers on key HR compliance issues. One such issue is how to effectively manage attendance and employee leaves of absence consistent with the Family and Medical Leave Act and the Americans with Disabilities Act.
RECOGNIZE A REQUEST FOR A LEAVE OF ABSENCE
An employer’s obligation to provide leave to an employee is triggered when the employee provides notice to the employer of the need for such leave. Because managers are generally the first point of contact, they often are the recipient of employee requests. A manager’s knowledge of a request will be deemed knowledge by the employer, triggering, for example, its obligation under the FMLA to timely provide notice of eligibility and rights and responsibilities within five business days.
Managers should be trained to recognize requests for leave (e.g., chronic conditions or brief overnight stays in the hospital may be serious health conditions under the FMLA). If a manager has such knowledge, but fails to notify HR, not only does the employer run the risk of an FMLA interference claim, but the employer may lose an opportunity to exhaust some of an employee’s FMLA leave and the employee may be inadvertently disciplined for legally protected absences.
Similarly, under the ADA, an employer is expected to timely respond and engage in the interactive process with the employee to determine if the requested accommodation is necessary and may be reasonably provided without an undue hardship. A manager’s delay in recognizing a leave request may contribute to an ADA claim for failure to accommodate.
DON’T AUTOMATICALLY DENY AN EMPLOYEE’S REQUEST
Managers often have the misimpression that there is no obligation to provide leave to a recent hire. However, the ADA requires employers to provide reasonable accommodations to disabled individuals, regardless of length of service. Because a leave of absence may be a form of reasonable accommodation, the fact that the employee is not eligible for FMLA leave does not absolve an employer from considering a disabled employee’s leave request.
This does not mean that a manager must grant every leave request. Instead, a manager must alert HR to the request so it can determine whether the employee is disabled, what the specific leave request entails and, in conjunction with the manager, whether the leave requested is reasonable and can be provided without an undue hardship. Going through this interactive process will render more defensible any decision to deny all or part of a leave request. Denying the request outright may lead straight to litigation.
An employer’s accommodation obligations do not end after FMLA leave has been exhausted. Instead, if an employee needs leave beyond the FMLA, an employer must engage in an interactive process to determine whether the employee is disabled, whether there are any accommodations that would enable the employee to return to work and whether the leave requested is reasonable and may be provided without an undue hardship.
In recent years, the Equal Employment Opportunity Commission has aggressively pursued employers with policies resulting in the automatic termination of employees who could not return to work at the end of a fixed leave period. Most recently, an employer resolved its dispute with the EEOC over its maximum leave policy for $4.85 million.
DON’T PROHIBIT RETURNING AT PARTIAL CAPACITY
Once an employee is ready to return to work, a manager may expect the employee to return at full capacity. For certain safety-sensitive or industry-specific positions, such as in health care, post-leave physical restrictions may be problematic. Similarly, an employee with a mental-health condition may have restrictions concerning his or her scope of work.
A manager may react to continued limitations by informing the employee that the employee must be able to return to work at full capacity, stay on leave until healthy or be terminated. This violates the employer’s obligation to engage in the interactive process under the ADA. While a manager need not remove an essential function of the position in order to return the employee to his or her position, the manager must be prepared to consider possible accommodations that would enable the employee to perform those essential functions.
UNBUNDLE PROTECTED AND UNPROTECTED ABSENCES
When disciplining an employee for attendance violations, a manager may refer to all absences that have prevented the employee from completing his or her tasks. While the absences’ cumulative impact may be significant, the validity of any disciplinary action will be subject to challenge if the manager includes both protected and unprotected absences.
For instance, when a manager disciplines an employee for being late multiple times in the last month because of migraines, car troubles and unrelated transportation issues, the reference to migraines (a potentially FMLA-covered absence) suggests that the employee is being disciplined for absences protected by law.
The solution? If the employee is eligible for FMLA leave, the manager should discipline the employee only for the non-FMLA covered absences and should work with HR to determine whether the absences for migraines should have been designated as FMLA leave. If the disciplinary notice was already provided to the employee, the manager may need to issue a revised warning, noting that the absences for migraines were not considered in the disciplinary action. Even where an employee is not eligible for FMLA leave, a manager should review with HR any disciplinary action based on absences arising from medical issues to ensure that the employee’s absences are not protected under the ADA.
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