When an employee requires a period of leave because of a medical issue or disability, the situation is not always straightforward, and the best way to manage it is not always clear. Adding to the confusion is that employers face an ever-changing alphabet soup of federal and state laws and regulations, starting with the Family and Medical Leave Act (FMLA).
Employees may become disabled or need to act as the primary caregiver for a disabled spouse, child or parent for an indefinite period, leaving them unable to return to work after they have used all of the legally required FMLA leave—generally a total of 12 workweeks during any 12-month period—in addition to whatever paid or unpaid leave their employer provides. Terminating that worker’s employment, however, is fraught with legal implications.
Developing a Game Plan
“Leave management is not cut and dried anymore,” said Mike Bailey, vice president of HR consultancy Aon Hewitt in Philadelphia. Before taking action, therefore, companies need to consider carefully whether a particular employee’s situation is covered by any laws and regulations. No matter what the circumstances, employers should consult with legal counsel to make sure their actions comply with the law.
For example, the Americans with Disabilities Act (ADA), after the 2008 enactment of the somewhat confusingly named Americans with Disabilities Act Amendments Act (ADAAA), considers extended leave to be a reasonable accommodation for disabled employees. “Employers must develop and follow a clear process to make sure that any discussions they are having with the employee are focused on identifying opportunities for the employee to come back to work and, where appropriate, making accommodations to get those people back to work,” said Bailey.
In this environment “effective leave management requires a game plan and some understanding of the basic rules that apply,” added Marc Mandelman, senior counsel at law firm Proskauer Rose LLP in New York. More important, organizations need to avoid common misconceptions about what they can and cannot do when an employee is out on leave.
Mandelman noted that companies may think they have the option of terminating a worker who has no more leave time available under the FMLA and is unable to return to work. Or employers may want to set a policy that limits the amount of available leave, with the implication that any employee who exceeds that amount will be dismissed. In both cases these actions run afoul of one or more of the laws that govern employee leave.
For example, the policy statement limiting available leave is likely to be considered an inflexible leave policy that the Equal Employment Opportunity Commission (EEOC) has deemed unlawful. In addition to the ADA and the ADAAA, other federal and state laws and regulations can affect employer actions when it comes to managing leave, and the situation is particularly complex in California.
Building a Leave-Management Structure
Obeying the letter of the law is not all an organization needs to do when it comes to managing employee leave. In general, employers should have a strong, well-documented policy that everyone in the organization knows about and understands.
Such clearly documented policies and procedures should be readily available to supervisors and employees. This way, when a worker goes out on leave, there is a clear road map for both the employee and the supervisor to follow.
“This can be a tough time for employees who are dealing with their own disability or sickness or that of a family member,” said Chuck Lamonica, a principal at HR consultancy Mercer in Philadelphia. “It is important to provide employees with a clear picture of what’s going to happen during what is an uncertain and stressful time.”
In addition, training is critical to ensuring that supervisors understand the leave-of-absence policy and process well enough to discuss them thoroughly with employees and to answer their questions. At the same time, supervisors need to be clear on what questions they themselves can and cannot ask of those they oversee. For example, it is never a good idea to ask employees personal questions, questions about the specifics of their medical condition or reasons for leave outside of what is specifically required to manage the situation, as that could run afoul of privacy rules under the Health Insurance Portability and Accountability Act (HIPAA).
It is important to understand that, even within these laws and regulations, employers have some room to maneuver. “One size does not fit all,” said Mandelman. “All situations involving reasonable accommodation have to be assessed on a case-by-case basis.” For instance, if a business grants one employee an eight-month leave of absence, that does not mean that eight months is the right amount of leave for everyone. “This does not necessarily establish precedents,” Mandelman explained. Other employees may require more or less leave until they are ready to return to work.
However, employers should tread carefully when making these types of distinctions and be sure to document the situation, the reasoning behind any relevant decisions and all communications with the particular worker.
While employers may have “different leave-management processes for different classes or types of employees, such as those covered by a collective bargaining agreement, nonexempt versus exempt employees and so on,” said Bailey, “once organizations start treating people differently within those categories, they start setting themselves up for potential legal issues.”
The Outsourcing Option
Given the growing complexity of leave management, it is not surprising that some employers are choosing to outsource leave management to ensure access to the right kind of expertise. However, an employer should take care when choosing an outsourcing partner because how it manages these situations and deals with the individual employees involved will affect how the rest of the workforce views the organization. So even if an organization decides to outsource leave management, it still needs to stay involved.
Employers need to find an outsourcing partner that is willing to keep them apprised of any ongoing leave cases and that will allow their input on handling a situation. Even when a vendor is overseeing the day-to-day details, leave management should still reflect the employer’s values and approach to workforce management.
Joanne Sammer is a New Jersey-based business and financial writer.
Understanding California's Complex Leave Laws, SHRM Online Legal Issues, March 2013
Managing Family and Medical Leave, SHRM Toolkits, March 2013
How to Develop and Administer Paid Leave Programs, SHRM How-To Guides, January 2013
How to Approve or Deny the Request for FMLA Leave, SHRM How-To Guides, January 2013
How to Calculate the FMLA Rolling-Year Method, SHRM How-To Guides, September 2009
Return-to-Work Programs: A Foundation for Successful Workforce Management, SHRM Online Benefits, February 2009
Disability Management Outsourcing, SHRM Online Benefits, October 2006
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