While the Family and Medical Leave Act (FMLA) gives workers the right to long blocks of leave and short, unscheduled "intermittent" leave, it doesn't give them unfettered ability to take random days off or arrive late without a good excuse.
Once the 12-week FMLA window expires, the Americans with Disabilities Act (ADA) in many cases appears to give workers open-ended leave.
Disciplining employees for FMLA or ADA abuse is scary ground for many employers. The result? Employees sometimes take advantage of the FMLA and ADA, and employers keep a wary distance for fear of triggering some type of disability discrimination claim.
That's understandable given that, in a Westlaw jury verdict search that Unum conducted in 2019, the average FMLA discrimination settlement from 2012–2018 was $505,000. The average ADA settlement in that same time period was $2 million. Should employers fear that running afoul of laws like these can lead to punitive damages? Of course. Should they simply roll over when workers clearly abuse the system? Of course not.
Disability leave abuse typically comes in three forms:
- Failure to provide appropriate FMLA medical certification
- Failure to follow the terms of the FMLA medical certification
- Failure to engage in the ADA interactive process
Failure to Provide Appropriate FMLA Medical Certification
Regardless of how well-intentioned the law is, it sometimes encourages abuse and leads to unwarranted and excessive employer penalties.
First, a word of caution: "The law is rapidly changing in this area, and many states and cities are enacting paid sick leave laws protecting employees who need time off from work to care for themselves or a family member or for other protected reasons," says Ellen Donovan McCann, AVP and legal counsel at Unum in the greater Boston area. "Accordingly, it's critical that you check with qualified legal counsel to ensure that your attendance policy is compliant with these laws and certainly before you discipline or terminate any employee for excessive absenteeism, tardiness, or failure to follow FMLA guidelines."
Discipline may be appropriate when the worker clearly isn't complying with the FMLA's terms—for example, when an employee verbally notifies you of the need to take time off under the FMLA, fails to provide medical certification to justify the leave, and then starts taking time off. Some workers continue to take time off while promising to provide certification "soon."
"In cases where … you're still waiting around for the employee to provide the appropriate medical certification, you have the right to issue a documented warning that states the following," according to Donovan McCann:
I expect you to immediately improve your attendance to meet minimum company standards. I also expect you to remain true to your word and hold yourself accountable for obtaining the appropriate medical documentation necessary to justify your absences, pursuant to the FMLA and our policy. Unless additional time off is substantiated by a qualified medical certification, any additional, unauthorized time off from this point forward will count as occurrences under our attendance policy, and you will be subject to disciplinary action, up to and including termination.
Failure to Follow the Terms of the Medical Certification
Employees sometimes exceed the terms of their FMLA certifications, promising to have their medical providers amend the current terms to reflect the "new realities" of their conditions. "Frontline managers often fail to bring the matter to HR or to the leave administrator's attention," counsels Jacqueline Cookerly Aguilera, partner in the labor and employment division of Morgan Lewis & Bockius, LLP, in Los Angeles, "only to find out later that many of the [absences] should have counted as disciplinary infractions under the organization's attendance control policy." In such circumstances, Cookerly Aguilera recommends language such as this:
The company permitted you to take a block of time between April 17 and May 8, 2019, with the understanding that you would remit the appropriate paperwork to convert your intermittent FMLA certification to a block FMLA leave. When you finally submitted your FMLA certification paperwork in mid-May, it acknowledged only the need for an intermittent leave of two days per week. You failed to provide the necessary paperwork to substantiate your leave. Excessive use of FMLA leave outside of the terms of your medical certification is not acceptable and may result in disciplinary action, up to and including termination. In addition, any further instances of tardiness or unscheduled absence (meaning an absence not protected by law or approved by your supervisor) will be brought to Human Resources' immediate attention for appropriate interpretation and response.
Failure to Engage in the ADA Interactive Process
Yet again a word of caution: Don't rush through anything that has to do with ADA reasonable accommodation obligations. Advises Cookerly Aguilera, "Case law is still being actively tested and challenged in this arena. Always consult with qualified legal counsel to ensure that you're in compliance, your documentation is sound, and you've requested all the appropriate documentation without overreaching into the realm of privacy or HIPAA [Health Insurance Portability and Accountability Act] violations."
Employees sometimes refuse to engage in the ADA interactive practice, which means discussing with the employer if there's a reasonable accommodation that will allow the employee to return to work. In such circumstances, you have the right to notify the employee in writing of your expectations and his failure to comply as follows:
On multiple occasions we have invited you to engage in a dialogue with us about reasonable accommodations that can help you return to work faster. Your response has consistently been, "Speak with my doctor" or "Refer to my doctor's note." Further, you have not provided updated medical certifications at the appropriate intervals, and the most recent note that we have on file expired on [DATE]. In addition, the information in your most recent medical provider's certification was insufficient because the doctor's explanation of your need for an accommodation didn't include a description of your relevant functional limitations. I remind you to follow up with your medical provider using the letter that I mailed you on [DATE] for supplemental information that addresses your functional limitations and potential company accommodations in more detail. At that point, we can discuss all the accommodations you'd like to request that will help you return to work or that will otherwise justify a continued leave of absence.
This type of interaction typically takes place from a distance because the worker is on leave. As such, you can't and shouldn't formally discipline the person remotely. Instead, allow your letter to point out the areas where the person refuses to cooperate or to adhere to company policy, or is violating your instructions. According to Kathryn McGuigan, a labor and employment attorney with Morgan Lewis & Bockius, LLP, in Los Angeles, "This won't likely help you deny an ADA claim for a reasonable accommodation, but it can go a long way in demonstrating the mindset of the individual who continuously fails to abide by your policies and instructions. In all cases, give yourself the advantage of documenting your findings to demonstrate the individual's lack of compliance and refusal to participate in the ADA interactive process."
The ADA doesn't require an indefinite leave beyond the FMLA's 12-week limit, nor should you necessarily accommodate one. "Just remember … most defense lawyers will advise you that even the one-year anniversary mark of a leave is no guarantee that you can separate employment without significant legal risk," McGuigan counsels. Extending the time "may protect your organization from unwanted liability and help your employee return to work in the healthiest and safest way possible."
The FMLA and ADA were created to protect injured and sick workers and return them to work safely and without retribution for having taken time off. Yet any good thing can be taken for granted or used selfishly. As an employer, engage wisely and with appropriate guidance when addressing leave laws.
Paul Falcone is vice president of HR at the Motion Picture & Television Fund in Woodland Hills, Calif. This is an excerpt from the third edition of his book 96 Great Interview Questions to Ask Before You Hire (Amacom/HarperCollins, 2018).