As an HR person, you care about people, says attorney Susan Fentin. Your impulse is to help an employee with a chronic illness. However, if the situation is driving the business down, you may not be able to help.
You need to balance these sometimes-competing interests, and that’s often not easy.
The Two Problems
Fentin, who is a partner at Skoler, Abbott & Presser P.C., points out the two poles of dealing with employees with chronic illnesses:
- Supporting the employee with chronic illness
- 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)/California Family Rights Act (CFRA) 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.
Family and Medical Leave in California: Top 10 CFRA/FMLA Administration Goofs to Avoid! Webinar coming Wednesday—Learn more.
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/FEHA or FMLA/CFRA)
- Changes in equipment or work location
FMLA and ADA
Remember that you should consider extending leave after FMLA/CFRA leave is used up with an ADAAA leave of absence.
However, note that the family leave laws require 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 what his or her health insurance payments will be.
Be careful about setting precedent here, says Fentin.
Tomorrow, we’ll look at 3 ways problems can arise with employee leave tracking.