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Know how to avoid hazards of absence management

Managing absences is hard enough when an employer’s only worry is getting the work covered, but when extended absences and overlapping laws also factor into the equation, the job gets even trickier. 

Federal, state, and local laws don’t always intersect smoothly, meaning employers need to be especially careful when dealing with employees in need of extended time off. On the federal side, the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) must be considered, along with state workers’ compensation laws and, in some cases, state and local laws requiring employers to offer paid leave. Plus, the employer’s own leave policies enter into the picture.

Sorting out an employer’s various responsibilities can be daunting, but the job is made easier when HR knows how to begin. And when an employee is requesting time off, the FMLA is a good place to start, according to Stacie L. Caraway, an attorney with Miller & Martin PLLC in Chattanooga, Tennessee.

Employers first need to consider whether they’re covered under the FMLA, which, among other things, requires employers to provide up to 12 weeks of unpaid leave a year to eligible employees dealing with their own or a close family member’s qualifying serious health condition.

Next, Caraway advises looking at applicable state or local leave laws to see if they provide leave that runs concurrently with the FMLA or if such laws provide greater coverage in some respects.

Sometimes employees don’t request time off but still need some kind of accommodation under the ADA if their condition constitutes a disability under that law. In such a case, Caraway says the first step is to see what kind of accommodation might work for both the employee and employer. In any case, the employer should not just put the employee out on leave, she says.

Policy problems
Sometimes employers’ own policies can put them in legal hot water. “I still see policies where employers are saying ‘employees will be terminated if they cannot return to work at the end of an FMLA leave,’ which is a violation of the ADA IF the condition which is necessitating the continued leave also qualifies as a disability under the ADA,” Caraway says. Such a policy is a problem if additional leave would be an appropriate accommodation for an employee covered under the ADA.

State and local paid leave laws also can complicate employer policies, Caraway says, since employers have to make sure their sick leave policies are in compliance with a leave law. “The good thing about these new laws is most of them state that an employer does not have to provide any additional leave under them—IF the employer’s current leave policy allows employees to use paid leave for the same purposes and under the same terms as the law provides,” she says.

However, state and local paid leave laws sometimes mean employers have to make policy changes. For example, sometimes employers with employees in states or cities with paid leave laws might also have policies stating that employees aren’t eligible for paid leave until they have worked perhaps as long as a year.

“Most of the new municipal or state paid leave laws require that employees begin to accrue leave upon hire and must be eligible to use it after a relatively short period like 90 days,” Caraway says. So employers have to consider the requirements in leave laws and make sure their policies conform.

What if no leave is available?
Of course, leave isn’t always required by law or an employer’s policy. Also employees who do accrue leave sometimes exhaust it and still need more time. Often employers want to keep such an employee even if the employee isn’t entitled to extra leave. What should an employer do?

Caraway advises those employers to proceed with caution. “The question I challenge clients with is, ‘Would you be willing to do this for your worst employee?’ as that is usually who will be out on leave next,” she says. Employers need to strive for consistency in how they treat employees while keeping in mind that treating employees differently sometimes is justifiable.

“The employer just has to make sure it memorializes what these operational differences are, as far as why it gave Mary in payroll three extra months of leave after her FMLA leave exhausted, but when Gene in the warehouse wanted two extra months, they told him ‘no,’’’ Caraway says.

The biggest and first thing to consider when employees ask for extra leave or leave they’re otherwise not entitled to is whether they have a disability under the ADA. “Some employers forget this step, or have been to a seminar where someone told them it is ‘illegal’ to terminate ‘anyone’ at the end of FMLA leave (which is not true), and so they get into the ‘extra leave giving business’ when they really do not have to,” Caraway says. “If the employee does have a disability under the ADA, even this does not mean the employer must give the employee whatever ‘extra leave’ they want.”

Caraway reminds employers that the law entitles them to look at their operational needs and consider whether they can cover the employee being out the extra time. If an employer can show that giving extra time off would be an undue burden on its operations, it can terminate the employee. The employer just has to make sure it can show why the extra leave caused an undue hardship.

“It is good to have some type of internal memoranda—to/from legal counsel, ideally—showing that the employer thought through its legal and practical options before letting the disabled employee go,” Caraway says.

Need to learn more? Join us at AEIS 2017: Advanced Employment Issues Symposium where Stacie Caraway, Esq., Miller & Martin PLLC and Susan Fentin, Esq., Skoler, Abbott & Presser, P.C. will present Absence Management in the Compliance ‘Bermuda Triangle’: FMLA’s Intersection with Disability Accommodation, Workers’ Compensation, and Paid Time Off. This session will provide a comprehensive look into how to conquer the most confusing leave-related conundrums under leave-protection laws. You’ll get legal insight into the leave and benefit traps that employers of all sizes need to avoid so you can develop sound administrative procedures that withstand scrutiny if called into question by regulators, a judge, or a jury. For more information, click here.