Leave Management, Policy, and Compliance

Quell Compassionate Impulses—Or Face ‘Regarded As’ Claims

In yesterday’s Advisor, we covered Attorney Franck Wobst’s key things to include in documentation. Today, things not to include, plus an introduction to a timely BLR Bootcamp on performance management.

The Two Problems

Fentin, who is a partner in the Springfield, Massachusetts, law firm Skoler, Abbott & Presser P.C., points out the two poles 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.)


  • 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 a notice of leave, they should follow your Family and Medical Leave Act (FMLA) protocol.
  • Mandatory EAP referrals. Offer employees support through your employee assistance program (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

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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 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.



Eligible only after 12 months and 1,250 hours

Eligible day one, before eligible for FMLA and after FMLA expires

Limited amount of leave

Leave not limited unless “indefinite”

Intermittent leave mandatory

Not required to tolerate erratic, unreliable attendance

Must maintain employer’s share of health insurance

May require employee to pay full insurance premium

Restore to same or substantially similar position

Restore to exact same position at end of leave

If certified, must provide leave

May not need to provide leave if it would be an “undue hardship”

Think your managers and supervisors are confused by the FMLA? And ADA? And FLSA? And that’s just the basics—experience suggests that the ways your managers and supervisors can cause trouble are just about endless. How do you know if they are following your policies?

There’s only one way to find out what’s really going on—regular audits.

The rub is that for most HR managers, it’s hard to get started auditing—Where do you begin?

BLR’s editors recommend a unique product called HR Audit Checklists®. Why are checklists so great? Because they’re completely impersonal; they force you to jump through all the necessary hoops one by one. They also ensure consistency in how operations are conducted. That’s vital in HR, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.

HR Audit Checklists compels thoroughness. For example, it contains checklists both on Preventing Sexual Harassment and on Handling Sexual Harassment Complaints. You’d likely never think of all the possible trouble areas without a checklist; but with it, just scan down the list, and instantly see where you might get tripped up.

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In fact, housed in the HR Audit Checklists binder are dozens of extensive lists, organized into reproducible packets, for easy distribution to line managers and supervisors. There’s a separate packet for each of the following areas:

  • Staffing and training (incorporating Equal Employment Opportunity Commission rulings in recruiting and hiring, including immigration issues);
  • HR administration (including communications, handbook content, and recordkeeping);
  • Health and safety (including OSHA responsibilities);
  • Benefits and leave (including health cost containment, COBRA, FMLA, workers’ compensation, and several areas of leave);
  • Compensation (payroll and the Fair Labor Standards Act); and
  • Performance and termination (appraisals, discipline, and separation).

HR Audit Checklists is available to HR Daily Advisor readers for a no-cost, no-risk evaluation in your office for up to 30 days. Visit HR Audit Checklists, and we’ll be happy to arrange it.