Ask the Expert: The Alphabet Soup of Leave Laws Heating Up

Question: Can a child take intermittent FMLA leave to take his ailing parent to doctor appointments?

This seems like an easy answer, right? Of course an employee can take FMLA leave for ailing family members…..but not so fast. Recent court cases have highlighted the distinctions between family members being absent from work to care for a covered family member under the FMLA versus employees missing work to assist covered family members under the FMLA. These cases further illustrate the need for employers to carefully consider how they are handling their disability and leave management cases as more nuances in the laws are uncovered.

In this case, the employee had an approved FMLA intermittent leave certification to take his mother to and from doctor’s appointments, but he didn’t manage the intermittent time properly. He had previously missed work on several occasions to care for his mother, and his employer told him that he must report to work before and after the appointments, whenever possible. His mother had a medical appointment in the mid-afternoon, and the employee’s shift started at 6:30 a.m. On that day, the employee did not report to work as scheduled and told his employer he was “caring for” his mother by making her breakfast and helping her dress for the appointment. The employer terminated his employment for absenteeism and he sued (Chappell v. Bilco Company). The court rejected his argument that the morning’s activity with his mother before driving her to the appointment was “caring for” her; in particular, the court stated that his mother was able to dress herself and that it was NOT medically necessary for him to make her breakfast.

Michael Soltis, managing partner with Jackson Lewis LLP, recently stated that the distinction between the “caring for” and “assisting” ailing family members will continue to be decided on a case by case basis, and the key deciding factor will be connecting the employees’ assistance to the family members’ serious health conditions. He also believes that leave and disability-related issues will be large items on the EEOC’s 2011 agenda, stating “one can comfortably speculate that the challenges facing employers to manage workplace disability issues, including attendance and leaves, will grow in 2011.” On the Hotline, we are helping our clients unravel the considerations they need to manage in dealing with their difficult and complex leave situations daily.

Issues for Employers

The increasingly complex alphabet soup of leave laws is heating up the workplace. The national spotlight continues to focus on providing workers with increased protection to keep and/or remain in their jobs after time away to deal with personal health or family issues. Employers are trying to understand what their obligations and rights are with the confusing array of leave and disability rules, and our clients are no exception. Second only to general benefits and health care reform issues (21% of total questions asked), leaves of absence questions are the most frequently asked (14% of total questions asked).

Most employers are aware of the federal Family and Medical Leave Act (FMLA) and the federal Americans with Disabilities Act (ADA). Twelve states (California, Connecticut, Hawaii, Maine, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin) and the District of Columbia have similar protected leave laws that mirror and complement the federal rules. Nothing in the FMLA supersedes a provision of state law that is more beneficial to the employee, and employers must comply with the more beneficial provision.

None of these laws provide wage replacement, which is a popular misconception. FMLA and the state mini-FMLA laws protect employees’ jobs and benefits while on leave, while the ADA is a job protection law. But often, employers dealing with an employee on an FMLA leave do not consider the ADA when the employee is ready to return to work. Added into the complexity are workers’ compensation illnesses and injuries, where employers traditionally have done more to protect the injured worker’s job and benefits but don’t think about certifying the leave as FMLA too.

More on FMLA …..

The federal FMLA provides qualified employees with a right to take unpaid leaveof absenceof up to 12 weeks if employees have worked for their employers for at least 12 months and worked at least 1,250 hours in the 12 months immediately preceding the leaverequest. Employees are entitled to use FMLA leavebecause of the birth or placement of a child, their own serious health condition or to care for a parent, spouse, or child with a serious health condition. Employees can take up to 26 weeks of unpaid leaveto care for a service member who is their spouse, child, parent, or next of kin and becomes seriously ill or injured while serving on active duty in the Armed Forces. The FMLA permits employers to require employees requesting leaveto provide a medical certification of the need for such leaveand to recertify the need for leaveevery 30 days. If employees fail to comply with the request for certification, that action could provide grounds for denial of the leave and even termination of employment.

And on another component of the alphabet soup (ADA) …..

We are seeing an increase in the number of questions and issues regarding leaves with ADA overtones (the “How long do we need to keep this employee on unpaid leave because we cannot accommodate the doctor’s restrictions?” question). The federal ADA requires employers to provide reasonable accommodation for disabled employees so that they can perform the essential functions of their job, unless this would cause employers undue hardship. However, there is no set amount of leavethat must be provided as a reasonable accommodation under the ADA, so this is where it becomes difficult. Every extended leave situation must be reviewed on a case by case basis to determine when it crosses the line between reasonable accommodation and undue hardship to the business.

We recommend that you do a thorough review of accommodation requests, document them completely, and consult with an expert prior to making any employment termination decisions. Recent EEOC-initiated lawsuits involving “extended leave of absence policies” are reminders of the importance in exploring reasonable accommodations before terminating disabled employees, even employees who have been off work for more than a year. This area is one of shifting sands, because even though the EEOC does acknowledge that indefinite unpaid leave is not a reasonable accommodation that an employer should have to make, the Agency still does not provide clear definitions about how far employers will be expected to go in accommodating employees who are unable to work.

The general thinking is that an employer must provide additional leave at the expiration of the FMLA-covered period as a reasonable accommodation unless “(i) there is another effective accommodation that would allow the disabled employee to return to work and perform the essential functions of the employee’s position, or (ii) granting additional unpaid leave would create an undue hardship for the employer. “ There have been recent ADA class action lawsuits targeting employers who have strict absence control policies with automatic termination dates linked to benefits termination rules, so employers should consider federal and state laws along with disability benefit plan rules prior to any employment termination.

Your Recipe for Success:

1. Ensure that your policies and procedures comply with the relevant laws, and that you have communicated your leave and disability management program effectively to your employees. To reduce your risks related to FMLA and ADA, you can:

  • Amend your leave of absence policies that call for automatic termination of employment following a specified leave term; instead the policies could state that termination of employment will only occur if no reasonable accommodation is available to assist the employee in returning to work.
  •  Eliminate any policy or practice requiring that the employee be 100% released for full duty before allowing the employee to return to work. Consider other accommodation options such as allowing the employee to return to modified duty, part-time work, reassignment to a different position (with or without a reasonable accommodation) and assistive devices.
  • Consider extending an unpaid leave of absence for a reasonable period if the employee will soon be able to return to work.
  • Notify employees when they are approaching the end of the leave period and invite them to engage in the interactive process to discuss whether reasonable accommodations are available to assist them in returning. THIS IS CRITICAL: You should document every communication with the employee during the interactive process, including every offer of a reasonable accommodation and every response from the employee.
  • Please note that you should not make any termination decision unless you have a documented record of attempting to engage the employee in an interactive process to explore reasonable accommodations, and you can show that you have exhausted all reasonable efforts to assist the employee in returning to work.

2. Follow all notification timelines when communicating with your employee about the leave, including before the leave begins, during the leave and the conclusion of the leave.

3. Understand the impact of employee absences on your bottom line and focus some of your efforts on managing your leave program more closely, tracking utilization and calculating costs associated with leaves. LOA costs often remain hidden because they are bundled with other expenses, such as benefits and labor. By focusing attention on tracking and administering your LOA program, you might find that LOA utilization rates are higher than you think and the costs are hurting your business. By quantifying those hidden costs and getting employees back to work sooner, you will be better able to decrease direct and indirect costs, such as overtime and temporary/replacement expenses, while managing and reducing time off, increasing performance and productivity (and probably improving the morale of your staff who have been picking up the extra work while the employee has been on leave).

 

Yes, the alphabet soup of leave and disability management is really cooking, but the smart chefs are following the recipe in order to keep from getting burned. Just remember that prior to making any decision that might impact the employee requesting a leave, on leave, or returning from leave, make sure that you analyze the facts under the FMLA, the ADA, relevant state law if applicable, and your leave and benefits policies. When your “kitchen” starts to heat up, just remember that the Hotline team is available to provide feedback and help you think through the issue. And never forget that the most important ingredient in your soup is your labor attorney, so add them to the kettle whenever the situation is unclear and/or you are considering taking action that might negatively impact your employee.

About Laura Kerekes, SPHR, SHRM-SCP

Laura Kerekes is ThinkHR’s Chief Knowledge Officer and leads the company’s human resources knowledge operations teams. She provides expertise to customers with complicated human resources and management issues, offers knowledge and guidance regarding management and HR best practices, and regularly shares her expertise through articles and webinars.