Compassionate Impulses—Understandable, But Dangerous

The Two Problems

Fentin, who is a partner in the Springfield, Massachusetts, law firm, Skoler, Abbott & Presser P.C., points out the two sometimes opposing desires of dealing with employees with chronic illnesses:

Supporting the employee with chronic illness, and
Managing the employee with the chronic illness.

Balancing these two needs isn’t easy, Fentin admits. (Fentin’s comments came at the Advanced Employment Issues Symposium, held recently in Las Vegas.) Fentin sees the following challenges:

• Compassionate employer impulses. For example, an employee is crying. The manager wants to say, “Are you OK? In pain? Depressed?” But that concern can lead to a “perceived disability” claim.
• Urge to inquire. Resist the impulse to inquire about employee illnesses/problems unless the employee seeks accommodation or you have reason to believe accommodation is necessary. If the need for accommodation is apparent, engage in the interactive dialogue.
• Urge to take action. Train managers that it is not up to them to decide or take action; their job is to inform HR. If they receive notice of leave, they should follow your FMLA protocol.
• Mandatory EAP referrals. Offer employees support through your EAP, but do not make "mandatory referrals." Again, they set you up for a perceived disability claim.

Some examples of typical accommodations:

• Breaks to consume food with medication
• Breaks or time off for rest or treatment
• Reduced hours or days of work
• Leaves of absence (ADA or FMLA)
• Changes in equipment or work location

Are class action lawyers peering at your comp practices? It’s likely, but you can keep them at bay by finding and eliminating any wage and hour violations yourself. Our editors recommend BLR’s easy-to-use FLSA Wage & Hour Self-Audit Guide. Click here for details.

FMLA and ADA

Remember that you should consider extending leave after FMLA leave is used up with an ADAAA leave of absence.

However, note that the FMLA requires maintenance of health insurance but the ADA does not. The employer may consider extending FMLA health coverage during the ADAAA leave. Let the employee know, “Here’s what your health insurance payments will be.”

Be careful about setting a precedent here, says Fentin.

Comparing ADA and FMLA

It’s helpful to have a clear picture of the differences between the two laws, says Fentin.

Think your managers and supervisors are confused by the FMLA? And ADA? And the Fair Labor Standards Act (FLSA)? FLSA should be simple, but it’s just not. Complying with it is one of the most confusing and challenging things managers and supervisors have to do. How can you tell if they are doing it right?

There’s only one way to find out what sort of wage/hour shenanigans are going on—regular audits.

To accomplish a successful audit, BLR’s editors recommend a unique checklist-based program called the Wage & Hour Self-Audit Guide®. Why are checklists so great? It is because they’re completely impersonal, and they force you to jump through all the necessary hoops, one by one. They also ensure consistency in how operations are conducted. And that’s vital in compensation, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.

Experts say that it’s always better to do your own audit and fix what needs fixing before authorities do their audit. Most employers agree, but they get bogged down in how to start, and in the end, they do nothing. There are, however, aids to making the FLSA self-auditing relatively easy.

What our editors strongly recommend is BLR’s Wage & Hour Self-Audit Guide. It is both effective and easy to use, and it even won an award for those features. Here are some reasons our customers like it:

• Plain English. Drawing on 30 years of experience in creating plain-English compliance guides, our editors have translated FLSA’s endless legalese into understandable terms.

• Step-by-step. The book begins with a clear narrative of what the FLSA is all about. That’s followed by a series of checklists that utilize a simple question-and-answer pattern about employee duties to find the appropriate classification.

All you need to avoid exempt/nonexempt classification and overtime errors, now in BLR’s award-winning FLSA Wage & Hour Self-Audit Guide. Find out more.

• Complete. Many self-audit programs focus on determining exempt/nonexempt status. BLR’s also adds checklists on your policies and procedures and includes questioning such practices as whether your break time and travel time are properly accounted for. Nothing falls through the cracks because the cracks are covered.

• Convenient. Our personal favorite feature: a list of common job titles marked “E” or “NE” for exempt/nonexempt status. It’s a huge work saver.

• Up to Date. If you are using an old self-auditing program, you could be in for trouble. Substantial revisions in the FLSA went into effect in 2004. Anything written before that date is hopelessly—and expensively—obsolete. BLR’s Wage & Hour Self-Audit Guide includes all the changes.