Survey after survey reveals that the most intimidating and confusing aspect of day-to-day human resources management is dealing with employee disability issues, especially leaves of absence. This area is of even greater concern because according to Helen M. Applewhaite the U.S. Department of Labor, Wage and Hour Division FMLA Branch Chief; employers should expect more onsite FMLA investigations in 2014. This Alert will impart strategies that will help any HR professional and other individuals charged with handling ADA matters. The most common FMLA violations found by the DOL include:
- Failure to provide notice;
- Certification issues;
- Leave denial/failure to properly designate FMLA leave;
- Improper calculation of FMLA leave;
- Failure to maintain benefits; and
- Termination or discipline for FMLA-protected leave.
Attendance Policies “No fault” attendance policies or point systems that impermissibly count FMLA absences or reasonable accommodation leave against the employee also draw attention during DOL and EEOC investigations. Employers should stay clear of attendance policies that assign points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Another example of dangerous attendance policies are “maximum leave policies.” Typically, these are ones in which at a certain point in time an employee on leave is automatically removed from his or her benefits plan and terminated. Such methods do not satisfy an employer’s reasonable accommodation duty. The danger is that even after FMLA leave terminates, an employer may be obligated to provide additional leave as a reasonable accommodation under the ADA and courts dislike “inflexible” leave policies. Lastly, if an employer uses a third party administrator to coordinate their leave programs, be aware, that it is the employer not the TPA that is liable for complying with the FMLA.
FMLA/ADA Best Practices Research by the DOL demonstrates that far too often the actions of front-line managers set the stage for FMLA liability because they are improperly trained and as a result fail to recognize an employee’s need for FMLA leave. Keeping an updated and comprehensive FMLA policy is among the best practices an employer can institute. Other best practices include:
- Training FMLA administrators, front-line supervisors, HR professionals and managers on the law;
- Maintaining open lines of communication with employees;
- Staying up-to-date on any changes to FMLA, its regulations or policies;
- Allow for tracking of FMLA leave in the smallest increments possible; and
- Do not silo decisions (FMLA, ADA, STD etc…), but create a system to deal effectively with each one.
While it is a best practice to require employees to request FMLA leave in writing, an employer should not deny FMLA leave simply because notice was done verbally. Avoid investigations by airing on the side of caution and grant the leave request, at least conditionally, in close call situations. For example, if an employee requests leave to care for an adult child with a disability, err on the side of coverage under FMLA and remember, that age of onset of the disability is irrelevant in determining a parent’s eligibility for leave under FMLA. The interactive process is often a part of both FMLA and ADA leave situations and employers must take this part of the process seriously, as a failure to properly engage in the interactive process is grounds in and of itself for legal action. Part of an employer’s responsibility is to act in good faith during the process and making accommodation suggestions is evidence of good faith. Lastly, though the emotions associated with a leave of absence may push an employer to want to terminate the employee in question, employers should avoid asking “whether the employee has been on leave long enough to terminate; rather, the question to ask is whether an accommodation could get him or her back to work.”
We hope you found this information of value. Please do not hesitate to contact your dedicated HR Consultant with any questions you may have.