A variety of laws govern extended employee absences. Many states have equivalent legislation. These federal and state laws share a common theme: The worker’s needs come first. In this document, Don Phin advises you to maintain compliance, and to go beyond the letter of the law to retain loyal workers.
The best-known federal statutes are the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and Workers Compensation laws. Each of these statutes has unique eligibility requirements. At the federal level, Workers Comp legislation applies to almost every employer, the ADA to those employing 15 or more, and the FMLA to businesses with more than 50 employees. Many companies are also subject to similar state laws that have requirements lower than the ADA or FMLA.
The ADA applies to employees with physical or mental limitations that affect their ability to perform essential job functions. To assist such an employee, an employer must modify their work schedule or duties, allow them to use accrued paid or unpaid leave, and implement any reasonable suggestion they might offer. This obligation exists unless it would impose an undue hardship on the employer.
FMLA allows up to 12 weeks of unpaid leave to care for infants, children, spouses, and parents with a serious health condition (such as hospitalization, incapacity requiring absence for three consecutive days, pregnancy, or medical treatment). Workers can usually take FMLA leave intermittently. The employer is obliged to restore the employee’s former job unless the position has been eliminated.
Finally, under Workers Comp, employees can take a paid leave of absence during the period that they can’t work. However, they can be required to work in a limited or 'light duty' capacity while recovering from the injury. As with the FMLA, the employer has an obligation to return the employee to their job if it’s still available.
Terminating an employee for invoking any of these acts can lead to a claim for wrongful discharge, violation of public policy, or retaliation. There’s a complex interplay among these laws when it comes to obtaining medical information. In general, any inquiry must relate directly to the statute involved. The more laws invoked, the broader the inquiry. This principle also applies to medical fitness-for-duty certificates, which give a date when the employee can return to work and under what conditions. Be sure to consider the impact of your own policies and procedures. Failure to apply your leave policies consistently will leave you vulnerable to charges of discrimination or retaliation.
For more information, go to www.dol.gov and visit the Web sites of state employment regulatory agencies.
A final note: Go beyond the letter of the law when dealing with your employees. There’s no better way to retain loyal workers than to show that you care about their personal and family lives.