Negotiating the maze of legal requirements applicable to employee leave can be a daunting task for human resources professionals. Leave issues involve multiple federal and state laws and regulations.
To make things more complicated, there have been major changes to both the Americans With Disabilities Act (“ADAAA”) and the Family Medical Leave Act (“FMLA”) in the last five years, as well as new laws such as the Genetic Information Nondiscrimination Act of 2008, all of which have made it increasingly difficult to manage employee leave. In this article we will look at the top ten mistakes employers make when dealing with employee leave and will provide suggestions on how to avoid them.
Forgetting that the ADAAA may require leave beyond the leave required by the FMLA.
Leave as a reasonable accommodation was not nearly as important an issue to human resources professionals prior to 2008, because several court decisions made it very difficult to prove that an employee was a “qualified individual with a disability.” That all changed with the passage of the Americans with Disabilities Act Amendments Act of 2008, which lowered the barrier to proving disability and brought the issue of reasonable accommodation to the forefront of ADAAA litigation.
With this new focus on reasonable accommodation, it is important for employers to remember that leave may be required under the ADAAA even when the employee has already taken all of the leave he or she may be entitled to under the FMLA.
Employers should keep in mind that leave need not be indefinite and that leave must make it reasonably likely that the employee will be able to return to work and perform the essential functions of his or her job.
If the leave request is indefinite or would not give the employee clear prospects for recovery, the requested leave may not be a reasonable accommodation. As discussed in item 5 on this list, resolution of these issues often depends on what the employee’s physician says. Employers must keep these principles in mind in dealing with the new ADAAA.
Failing to correctly administer FMLA leave requests.
The nuts and bolts of the FMLA are complicated at best. There are multiple decisions that must be made by the employer including decisions on certification, recertification, intermittent leave, etc.
One of the most common mistakes we see among employers is failure of the managers who have to make leave decisions to simply know the basic rules of what is required under the FMLA. Inadvertent mistakes can often lead to claims of interference.
The key to avoiding mistakes on the everyday requirements of the FMLA and the legal claims that accompany them is regular training. Any management employee that deals with leave issues should participate in yearly training on the FMLA. Employers who fail to conduct regular training needlessly expose themselves to liability under the FMLA.
Misunderstanding the importance of the interactive process.
As stated above, the ADAAA has shifted focus from whether or not an employee is disabled to whether an accommodation is reasonable and/or will cause an undue hardship on the employer.
The ADAAA contemplates that the process of providing a reasonable accommodation involves an “interactive process” where the employer and employee get together and determine what the employee’s limitations are, what accommodations are needed, and what accommodation may or may not be feasible.
One common mistake that employers make is not understanding the importance of this interactive process under the new ADAAA. Once an employee requests an accommodation, the employee and employer should meet to discuss the employee’s limitations and how the disability is prompting the need for an accommodation.
Both parties should suggest accommodations, if possible, and all the proposed accommodations should be documented. Because employers may only think of the FMLA with leave requests, employers often do not engage in the interactive process when leave is requested.
A well-documented interactive process may lead to alternative accommodations and will always help the employer to defend itself if a request for leave turns into a lawsuit. An employer that foregoes this process and simply informs the employee what it is willing to do for an accommodation will often expose itself to unnecessary risk.
Failing to appropriately manage intermittent leave.
Intermittent leave has always been and will continue to be one of the biggest problem areas in employee leave. The recent revisions to the FMLA regulations did not do much to change this. Employers tend to either “give up” on employees who are on intermittent leave or act rashly in disciplining or terminating employees on intermittent leave if the employer believes the employee is abusing the leave process. The only real option for managing intermittent leave is to know the rules and follow them.
The basic rules are as follows:
- Intermittent leave is only allowed when “medically necessary” for employees with a serious health condition, a family member with a serious health condition, for military caregiver or qualifying exigency leave. For other types of FMLA leave, intermittent leave is in the employer’s discretion.
- Only the actual number of hours taken may be charged as FMLA leave. The number of hours taken depends on the employee’s normal work schedule. If the employee’s hours vary, use a weekly average for the prior 12 months. An employee may limit leave increments to the shortest period of time the employer’s payroll system uses to account for other forms of leave, but not greater than one hour.
- Employees can be required to follow employer’s usual and customary notice procedures for requesting leave, absent unusual circumstances or emergency medical treatment. When an employee requests leave for a condition that has already been certified, the employee should specifically mention the FMLAqualifying reason and cannot just call in “sick.”
- If intermittent leave is required for a planned medical treatment, the employee must make a reasonable effort to schedule the treatment so as not to unduly interrupt operations.
- Recertification can be requested after the duration in the certification or every 30 days in connection with an absence. Regardless of the duration in the certification, recertification may be requested every six months.
- An employer may obtain a second or third opinion on the need for intermittent leave and may also contact the medical provider to clarify the need for leave in some circumstances.
- If a suspicious pattern develops or circumstances change significantly, the employer may be able to request a recertification. The employer can describe the pattern of absences to the doctor and ask for clarification.
- Under some circumstances, an employee may be temporarily transferred to an alternative position with equivalent pay and benefits. This is still the most problematic area in the FMLA and will still be the most common way for employees to abuse leave. The only thing you can do is to know the rules and follow them.
Failing to take advantage of your right to receive clear and sufficient medical information to support a leave request.
Under the ADAAA, when the disability is not obvious, an employer is entitled to ask for reasonable documentation about an individual’s disability and functional limitations. Similarly, under the FMLA, the employer has the right to have a leave request certified. If the certification is incomplete or unclear, the employer may have it authenticated, completed, or clarified. This all sounds great on paper, but as any person who has dealt with leave issues knows, the reality is that getting information from a doctor’s office is often difficult and time consuming. Physicians may fail to respond to requests for information, and when they do, the information is often vague, incomplete, or illegible.
With regard to leave, employers make the mistake of failing to require the physician to provide the duration of leave and whether the leave is reasonably likely to allow the employee to perform the essential functions of his or her job. As stated above, leave may not be a reasonable accommodation if it is indefinite or does not give the employee clear prospects of performing the essential functions of his or her job. Determination of these issues makes it particularly important that employers require physicians to provide accurate and complete information supporting a request for leave.
Failure to protect yourself from GINA.
The Genetic Information Non-Discrimination Act of 2008 (“GINA”) prohibits employers from acquiring an individual to provide genetic information (defined as including a person’s family medical history).
Employers that receive genetic information, even pursuant to the ADAAA or FMLA, can be liable under GINA unless their acquisition of genetic information is inadvertent. To show that any genetic information that is acquired was not acquired intentionally employers should insure that any requests for medical information should have a safe harbor statement found at 29 CFR §§ 1635.8(b)(1b) to help insure protection from GINA. This is a simple step, but one that is often overlooked.
Misunderstanding the requirements of the FLSA when aying employees on leave.
Generally, federal labor laws do not require employers to pay for sick leave. One common problem we see is that employers jeopardize exempt employees’ exempt status by improperly docking employees’ pay when on leave. Employers should keep in mind that deductions from exempt employees’ pay is permissible when the employee is absent from work for one or more full days for personal reasons other than sickness or disability and for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy, or practice providing compensation for salary due to illness.
To make a deduction for sick leave that does not jeopardize an employee’s exempt status, two requirements must be met:
First, the absence must be for a full day. Absences of less than a full day are not sufficient, unless the employee is on FMLA leave.
Second, the deduction must be in accordance with a bona fide plan for providing leave benefits. A published leave policy providing sick leave will typically be a bona fide plan. Employers must keep these rules in mind to avoid jeopardizing an employee’s exempt status.
Not using light duty when it is to your advantage.
The ADAAA’s rules on light duty are complicated. An employer may be required to restructure an employee’s job to be reallocate or redistribute non-essential functions.
However, an employer is not required to reallocate essential functions (i.e. to create a light duty or new position). If an employer has an existing light duty job, reassigning the employee to a light duty job may be a reasonable accommodation.
Under the FMLA, a FMLA-eligible employee cannot be required to accept light duty in lieu of FMLA leave. However, if the employee does accept light duty, the employer may not continue to deduct FMLA leave while the employee is at work in the light duty position.
Employers should also be aware that a FMLA-eligible employee on light duty has the right to job restoration until the end of the employee’s leave year.
Possibly because these rules are confusing, employers often fail to take advantage of the ability to use light duty to get an employeeback to work. While some employers do not offer light duty for fear of setting a precedent in future cases, employers are not generally going to be required to provide light duty positions under the ADAAA even if they have done so in the past.
In other words, giving light duty as an accommodation one time does not necessarily mean you will have to give it in every situation. Thus, light duty remains an unused option for many employers.
Failure to take advantage of fitness for duty certifications.
Both the ADAAA and FMLA allow a fitness for duty certification for employees who are attempting to return to work. Generally, employers may require that a fitness for duty certification address the employee’s ability to perform the essential functions of the job and can attach a job description to the request. Under the FMLA, a job description describing the essential functions should be given to the employee with the description notice. If the health care provider does not certify that the employee can perform the essential job duties on the fitness for duty certification, then job restoration can be delayed. Employees often fail to take advantage of this valuable tool.
Failing to adequate identify a position’s essential functions.
An age old problem for employers is failure to maintain accurate job descriptions. Job duties change and it is often impossible for employers to keep job duties accurate and consistent with what employees actually do on the job. Given the new focus of the ADAAA on reasonable accommodations, determining what a job’s essential functions is critical.
Because an employer is not required to modify or eliminate an essential of a job to accommodate a disability, not taking advantage of a job description or other steps to ensure that a job’s essential functions are adequately defined is a mistake that makes it much more difficult to determine whether a request for leave or any other accommodation is reasonable. Employers should regularly review job 
descriptions to ensure that they accurately reflect what the employee actually spends his or her time doing. Avoiding the mistakes described above can lessen your exposure when dealing with leave issues.
The information contained herein is not intended to constitute legal advice for any specific situation, as the facts of each situation will vary. If you have questions about these issues please contact Robert Williams, Jr., Brent Siler, or your legal advisor.