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Employers should think through how they communicate with employees who are out on leave.
Don’t let managers pepper employees on leave with work-related questions, cautioned Laurence Stuart, an attorney with Stuart PC in Houston, saying such questions may lead to the “next wave of litigation.” Speaking at the Society for Human Resource Management 2016 Annual Conference & Exposition on June 20, he cautioned that these inquiries may violate the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act. Such questions run afoul of both laws because the employee’s right to leave is interrupted and answering the questions may be prohibited off-the-clock work.
Overly conscientious employees on leave shouldn’t be allowed to check in by e-mail either. They should be reassured that the office won’t collapse without them, Stuart noted.
Avoid ‘Robot Letters’
An employer can occasionally call to ask how the employee is doing and encourage him or her to return to work at the end of his or her leave entitlement.
The employer should not send out letters merely stating when the employee’s leave is coming to an end and that the employer expects him or her to return to work then.
“Some send out letters that sound like an angry robot,” Stuart said.
Put the “human” part of “human resources” to work when drafting these letters, he recommended, saying the letters should ask how the person is doing and if there is anything the employer can do to help. The Equal Employment Opportunity Commission in particular wants to see if the employer done its utmost to provide an employee with a disability additional time off beyond the FMLA’s 12 weeks as an accommodation under the Americans with Disabilities Act (ADA), he noted.
Juries hate the so-called robot letters and may rule against employers who send them. Juries are made up of 12 people, some of whom have lost a job or had a crappy manager, Stuart reminded attendees. So show that the organization has a heart.
Within five business days of the employee providing notice of the need for leave, the company should notify the employee of his or her eligibility and rights.
The burden of showing that the employee has received the notice is on the employer, Stuart noted. He favors regular mail, as it typically gets through, he said, and, unlike certified mail, doesn’t require someone’s sign-off.
An e-mailed notice can be problematic if it is sent to a work e-mail address, even if using the return receipt feature, because someone on leave is not supposed to check work e-mail while out on leave.
Managerial communications are important as well. Train managers to notify HR as soon as they hear an employee mention time off for medical reasons, Stuart recommended.
Managers need to understand that when employees request leave, they do not have to say “FMLA,” “sick” or “medical” for the leave to potentially be covered by the FMLA. An employee instead might ask for time off for personal issues or to see a specialist, for example.
Many managers don’t understand that any reference to medical treatment of any kind should be referred to HR, so that the employer can start counting the FMLA time off.
And managers should be trained that interfering with FMLA time off can result in them being personally liable in any subsequent litigation. That will get their attention, according to Stuart. Managers also must be sure not to retaliate against an employee after he or she returns to the job, even if the manager is annoyed that the individual took FMLA leave, he added.
HR and Medical Inquiries
Finally, Stuart emphasized that the HR department should handle the follow-up on FMLA medical clarifications and certifications, not managers.
Under the ADA, if an employee denies permission for HR to talk with the employee’s doctor, that employee is not cooperating in the interactive process for identifying a reasonable accommodation, Stuart added.
When determining whether employees would be direct safety risks to themselves or others if they returned to the job, Stuart reminded HR that “You’re not doctors. Doctors have to say there is a safety risk.”
The current job description of the employee will play a key role in this determination and should be provided to the doctor.
Even if there is determined to be a safety risk, the ADA requires that an employer determine whether there is a way to reasonably accommodate the employee so that the problem is alleviated. That may include reassigning the worker to a vacant position.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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