CHICAGO--“Pretend you are going on leave yourself. See how the system works,” Heather A. Owen, an attorney with Constangy, Brooks & Smith in Jacksonville, Fla., suggested to attendees during a Monday session at the Society for Human Resource Management (SHRM) Annual Conference & Exposition. “Your reaction might be, ‘I’m in HR. We set the system up, and I’m getting confused. So how can our employees do it?’ ” Owen said in her presentation on auditing Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) processes.
Having flawed or deficient leave of absence and accommodation procedures can have high legal and business costs, Owen said. It is important for HR professionals to analyze the flow of the organization’s receipt and processing of employee leave and accommodation requests so that they can identify the most common system breakdowns that may lead to legal violations and business losses.
These procedures can then be improved to be more efficient and more legally compliant.
Potential Costs of Flawed Procedures
The legal costs of FMLA and ADA violations can be staggering, Owen said. A successful FMLA plaintiff can receive actual damages including front pay, back pay and medical costs, as well as double damages in some cases. Under the ADA, in addition to actual damages, successful plaintiffs may be entitled to punitive damages. Unnecessary errors and inefficiencies can increase legal costs, Owen said
There are business costs as well, she noted. Lost productivity can result from having employees on leave who are not entitled to leave or from having employees on leave longer than necessary.
In addition, your company may end up with “departments duplicating efforts, spinning wheels or cleaning up messes.” And you are very likely to have some unhappy employees.
Mismanagement of leave and accommodation processes also may result in increased workers’ compensation, health and disability insurance premiums, Owen noted.
Owen showed a video depicting “Lindsay,” an employee of XYZ Co. who is subject to panic attacks. Because of these attacks, she asks her supervisor for a reduced schedule. And because of the medication she is taking, she has trouble waking up in the morning, so she asks for permission to arrive an hour later. She also requests no night or weekend overtime.
Lindsay never submits FMLA paperwork, and her supervisor refuses to adjust her schedule, saying that the company does not allow light-duty work. Lindsay then accepts a weekend job working with children. On her Facebook page, she posts pictures of herself at this second job during a weekend when she refused overtime. She is eventually terminated and sues the company for FMLA violations. She will win her lawsuit, Owen says.
Among the lessons to be learned from Lindsay’s story are the following:
An employee cannot legally be terminated for a lack of FMLA paperwork. Although lack of paperwork may present a disciplinary issue, it is not grounds for discharge.
Lindsay could not be terminated for accepting her second job during the hours she had refused to work overtime for XYZ. The second job was very different from the first. Lindsay said she found working with children restful and found that it reduced her panic attacks. “If someone with a back injury accepts a job belly dancing,” you may have FMLA abuse, Owen said, but it is not present in this case.
You can’t have a blanket policy prohibiting light-duty work. You have to look at the individual situation. This is true under the ADA as well as the FMLA, Owen said.
The audience, equipped with “clickers,” answered questions posed by Owen about Lindsay’s situation. Even among the seasoned HR professionals, there was a great deal of doubt, showing just how confusing and tricky leaves of absence and accommodation issues can be.
Joanne Deschenaux is a senior legal editor for SHRM online.