When it comes to leaves of absence from work, most of us think of the 'big three': the Family and Medical Leave Act ("FMLA"), the Americans with Disabilities Act (ADA) and Workers' Compensation laws.
A quick Google search today tells me that FMLA settlement amounts are beginning to rival its labor law cousins: $1.3 million for firing an employee while he was on FMLA leave, $1.48 million for retaliating against an employee for exercising her FMLA rights, and $2.8 million for FMLA interference. A similar search for ADA settlements indicates that this law trails significantly behind, with the top three settlements on Google's home page being $175k, $221k, and $315k. Not numbers to ignore by any means, but surprisingly lower than the FMLA ,despite it being the youngest of the leave laws, having only been around since 1993.
Fortunately for employers, most workers' compensation settlements are injury-related (based on a fixed fee schedule) and not from the mishandling of leaves from work, since claims handling is mostly left to the insurance carriers. This area of the law can slyly mislead HR pros to thinking they can just file the claim and forget it, but that is not the path to a successful outcome. Employers DO get in trouble with these claims when it comes to managing the employee's actual absence from work since that could implicate both the FMLA and ADA, as well as state and local laws.
It's so easy to run afoul of leave law regulations. When you have an employee who you know is manipulating the system,has previously been a terrible performer, or is a key employee that you need to be able to run your company, it seems reasonable that you could just say 'you know what, we don't need you anymore' or 'we have to replace you'. Most of us operate in at-will states without collective bargaining agreements, after all. Alas, those options rarely work out for employers in the long run because these leave laws provide very specific protections for employees that effortlessly squash any thought of not playing by the rules, unless you want to take the risk of paying out even more money to the employee you wanted to get rid of in the first place.
As HR professionals, we come up against this exact argument over and over. It is our job to educate our stakeholders on the dangers of those perspectives while carefully balancing the importance of meeting operational objectives. If we simply say "that's illegal" or "we can't do that," we likely won't be seen as trusted partners in the business. We have to take a different, calculated approach. One that involves research, options, and compromise.
Fortunately, the FMLA and Work/Comp regulations make this a bit easier for us in that they have some pretty specific roadmaps to follow, but the ADA is as gray as the Washington sky on any given day in December (rainy and gloomy), burying us in "interactive processes", "reasonable accommodation considerations", and an abyss of case law that we have to attempt to interpret in order to come even close to an answer about whether or not the decision we want to make will violate the law in some way (ultimately checking in with our friendly employment law attorney on the tricky/complicated stuff to confirm we are right).
HR pros must be diligent in cautiously and methodically walking through all of the intersections of leave laws in order to avoid legal landmines. More on this topic to come!
Leave Law Violations = $$$$$$$ © 2022 by Amber Rhoton is licensed under CC BY-ND 4.0