dealing with Protected Employee Leave

By: Bill Vogel, PHR
Date: September 15, 2018
www.VirtualHRPros.com

Businesses in the US with 50 or more workers must provide employees with a leave of absence for medically related reasons under the federal Family Medical Leave Act (FMLA). FMLA also gives employees job protection for other reasons such as time off to care for a sick family member and during military deployment of a spouse, son, daughter or parent.
 
In addition, businesses with 15 or more workers must consider providing employees with a medical leave of absences under the Americans with Disability Act (ADA). FMLA and ADA are federal regulations and both have very different and extensive requirement with severe consequences if not properly administered. Also keep in mind that many states have similar leave laws in addition to FMLA and ADA.
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Supervisors and managers need to know what to say, what not to say, and what actions to take when an employee communicates a circumstance, such as personal health or family medical concerns that will require time off from work. After an employee requests or informs a manager of impending absences due to circumstances such personal or family related medical issues:

• Don’t initially deny a leave, threaten to terminate, or discourage a leave of absence even if the employee did not provide advance notice.
• Ask the employee to submit a written request for needed time off, but make sure information about any medical diagnosis is not included.
• Ask the employee when the leave will begin and end, or will approximately end.
• Document the date and time the employee communicated the need for a leave, such as sending an email to upper management or Human Resources.
• Plan to back-fill open positions due to protected leave of absences with temporary employees or other interim coverage.

Get help from an HR Professional or attorney specializing in ADA and FMLA to determine if an employee’s need for a medical leave of absence is not protected. Managers may also need help dealing with employees during an employee’s leave of absences and reducing leave abuse. Questions a manager might have about an employee’s leave of absence that require HR’s help are:

• Is the employee qualified for a legally protected leave?
• Which leave laws protect the employee’s absence?
• How is the employee protected while on leave?
• What are the documented notification requirements?
• How long after the leave has ended can an employee be terminated?
• How are light duty or work restrictions handled upon an employee’s return from leave?

Navigating all the federal and state employee leave laws can be a huge undertaking. The Equal Employment Opportunity Commission (EEOC) releases information on hundreds of successful disability discrimination lawsuits filed against businesses for failing to administer protected leave. Managers are on the front-line of protecting businesses against these costly and embarrassing lawsuits.

This blog only introduces managers to the complicated world of dealing with employee leave compliance. As always, get help from a qualified HR professional or attorney if you think your business is at risk, or help is needed developing policies, procedures, and training courses to assist with workplace compliance requirements.
 
Notable Links for Quick Reference:
Family Medical Leave Act
Americans with Disabilities Act
Equal Employment Opportunity Commission