When an employee needs time off of work due to a medical condition, employers can find themselves in pretty big trouble if they don’t understand and comply with various employment laws.
Many employers are governed by the Family and Medical Leave Act, the Americans with Disabilities Act, and state laws. Most employers must also comply with workers’ compensation laws regarding work-related injuries and illnesses.
So, while it may seem logical to approve or deny leaves based on business needs and what seems reasonable, if employers are not educated on the laws they could violate them without even knowing they exist.
Here are five key compliance issues employers must follow when they are governed by the various leave laws (and even if they aren’t, these are still good practices to be a good employer).
Provide required notices. Some laws require that you provide employees with a notice of their rights under the law. An example of this is the Family and Medical Leave Act[1]. Often, employers satisfy this right by having a policy displayed in their handbook, as well as posters displayed in conspicuous areas for employees to see. Some laws require an additional notice upon request of leave.
Request medical support. It’s not only compliant and reasonable to request a doctor’s note or other medical support when employees take time off work, it is a best practice. Keep in mind, some state laws do not allow this until some requirements are met (like 3 days of consecutive time off[2]) but generally it is good to get a doctor’s note so that you can determine what the employee needs, how you need to make operational changes to accommodate the time off of work, and to determine if you can make that accommodation at all if the leave is extended.
Consider reasonable accommodations. Be careful to initiate the interactive process to fully assess the situation before denying a leave. This step is required for employers governed by the ADA[3]. Simply, this just means that you will engage with the employee to determine if there is a reasonable accommodation you could consider that would allow the employee to perform their essential job duties. Very often this could be an unpaid leave of absence.
Track time. One of the biggest mistakes employers make is not tracking leave. They grant leave and then before they know it, the employee has been gone twice as long as expected with no end in sight. Track the time and follow up appropriately to request additional doctor’s notes and other supporting documentation to allow you to continue to allow extended leave.
Use caution before approving or denying leave. While it would be anticipated to seek legal counsel before denying a protected leave, you should also be careful when approving leave. When you approve leave for your best employee, denying it for a similarly situated employee just because you don’t like them or their performance isn’t the best could land you with a discrimination lawsuit[4]. Our best advice is to always ask yourself if you would allow the leave for your worst employee – if the answer is no, you shouldn’t allow it for your best employee either unless there are details about that employee except in specific circumstances.
Following these tips will not only help you manage your operational objectives, they will help you stay out of court! However, there is so much to consider when managing employee leaves and the best protection is to work with a trust HR professional to help educate you and help you stay compliant.
Five Ways to Protect Against Leave Lawsuits © 2022 by Amber Rhoton is licensed underCC BY-ND 4.0
[1] EMPLOYEE RIGHTS UNDER THE FAMILY AND MEDICAL LEAVE ACT, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fmlaen.pdf. [2] California Paid Sick Leave: Frequently Asked Questions, Ca.gov (2017), https://www.dir.ca.gov/dlse/paid_sick_leave.htm (last visited Nov 21, 2022). [3] Interactive Process, Askjan.org (2018), https://askjan.org/topics/interactive.cfm (last visited Nov 21, 2022). [4] Example - Denying a Leave Request, US EEOC (2022), https://www.eeoc.gov/employers/small-business/example-denying-leave-request (last visited Nov 21, 2022).