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How to Review Your Leave Policies to Mitigate Risk to Your Business

Posted on December 15, 2015
Jeremiah BushWritten by Jeremiah Bush | Email author

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If your organization were faced with an EEOC charge or wrongful termination lawsuit from a former employee, how confident are you that your organization would ultimately prevail? What if the premise behind the EEOC charge or lawsuit centered on an alleged violation of the FMLA (Family and Medical Leave Act) or ADA (Americans with Disabilities Act)? Would your leave policies and procedures hold up in front of a judge, jury, or hearing officer?

Before you answer with a resounding an unequivocal ‘Yes’, consider that there have been several recent high profile court decisions against a few Fortune 500 companies that were found in violation of the FMLA and ADA because of their leave policies and practices. If a Fortune 500 company with deep pockets and vast resources, including corporate attorneys and skilled HR professionals, can be found in violation as a result of a leave policy (which was likely honed, refined, and rewritten numerous times throughout the years to meet compliance standards) could your organization with a smaller budget, legal and HR staff potentially face the same fate?

The reality of the current regulatory environment is that although companies may be following the letter of the law, it is quite possible they are not following the spirit of the law, especially in relation to their leave policies and practices. Specifically, both the EEOC and Department of Labor’s Wage and Hour Division are both on record as stating they are paying particularly close attention and giving extra scrutiny to how organizations carry out leave administration and implement leave policies. The courts have been generally supportive of the EEOC and DOL, as well as of employees who file suit on their own challenging an organization’s leave administration practices. Two of the biggest offenses relate to 1) policies that set a limit or cap to the amount of leave an employee has before he or she is terminated,  and 2) requiring return to work certification from a medical provider before being allowed to resume working.

Setting a Limit or Cap to the Amount of Leave Before Separation

The courts and the EEOC have made it clear that employers cannot arbitrarily set a blanket policy on leave thresholds and operate with other similar “no fault” attendance policies. For example, an employer who has a policy of automatically terminating, administratively discharging, or summarily severing employment with employees once they’ve been on a leave of absence for six months is likely to be in violation of the spirit of the ADA because it does not allow for the interactive process to take place between the employer and employee.

The Interactive Process

The ADA does not actually require employers to provide accommodations to employees if they are unreasonable, but it does require employers to at least engage in a collaborative and interactive process with the employee in order to determine if there are any accommodations which are mutually acceptable to both the employee and employer. The notion is that without the interactive process taking place, employers can’t unilaterally determine what is or is not reasonable, practical, or feasible, nor can employees fully grasp on their own what potential options and choices are available to them to continue carrying out the essential functions of their job. Additionally, the ADA requires employers to give equal consideration and collaborate with every individual request on a case by case basis, thus any policy which is applicable to an entire workforce without consideration to the merits of each unique circumstance or request is unlawful and discriminatory in nature. This is not to say that employers must change their policies and incorporate indefinite leave as an option, but simply that employers must attempt to work with individual employees to determine what the company can reasonably accommodate.

Setting Leave Duration

For companies that set a leave duration, it is recommended that they alter the language to ensure it is clear that such a duration is not viewed as arbitrary or rigid. For example, the language can be amended to say that following six months of leave, employees are expected to either return to work, with or without reasonable accommodations, or contact Human Resources to discuss the need for additional leave and whether such a request can be granted. This places the onus back on the employee to re-engage their employer in the interactive process and the employer is only obligated to participate and interact in good faith in that process. This also allows both the employee and the employer flexibility in moving forward without engaging in legal actions.

Return to Work Certification

So now you have an employee who is approaching the end of his or her approved FMLA or ADA-protected leave and they call to inform you they expect to be back to work at the start of next week. While both FMLA and ADA regulations make it clear that Fitness-For-Duty (FFD) certifications and return to work medical notes may be required by employers before an employee can be reinstated to their previous or an equivalent position, it is recommended that managers exercise caution and prudence in making such a request. The legal rationale behind it is two-fold, but essentially revolves around reinstatement rights and reasonableness:

  • First, if you have a policy which absolutely compels an employee to provide a FFD certification before being allowed to return to work, you could potentially find yourself in a situation where you are delaying or preventing him or her from their statutory right to be reinstated to the same or equivalent position following the end of the leave.
  • Secondly, if you have already approved an employee to take a medical leave, especially intermittent leave, by requiring that employee to provide a note upon returning to work in order to “prove” that the leave was taken for the intended purpose, a court could subsequently consider that an unreasonable and overly burdensome recertification requirement and process that essentially discourages employees from exercising their statutory entitlement (read about such an example here).

I often see leave policies or practices which require that employees returning from an approved leave of absence be 100% healed and fully able to perform their job as they did prior to going out on leave. Not surprisingly, these types of requirements have been routinely found to be illegal by the EEOC courts for the same reason that blanket policies surrounding maximum leave limits have been deemed illegal – they disregard the employer’s legal obligation to engage their employees in an interactive process on a case by case basis.

What to Ask in a Return to Work Medical Note

It is acceptable to ask for a medical note that clears an employee to resume working provided it meets the following conditions:

  1. Employees are made aware as soon as practical that they will need to one (preferably at the onset of the interactive process or at time they ask for a leave of absence request)
  2. Does not impede or disregard the interactive process (i.e. does not require employees to certify they can return to work full duty or at 100%)
  3. Doesn’t unnecessarily delay or prevent an employee’s right to be reinstated
  4. Is consistent and uniformly applied across the organization
  5. A FFD certification requirement prior to reinstatement is based on the reasonableness of condition and situation and the not person or position

As you review and update your leave policies and practices, please remember that establishing a well-defined best practice inherently involves implementing a standardized documentation process. Although this may seem intuitive, there are still far too many instances in which organizations approach ADA and even FMLA on an ad-hoc basis and do not utilize a formalized workflow to document every step in the interactive process. Maintaining a well-documented process from start through finish and training your organization’s managers and employees on navigating successfully through that process will increase your likelihood of prevailing in a lawsuit or EEOC claim.

1 Comment

  1. by Joshua Bamigboye on January 19, 2016 at 6:08 am

    This is absolutely informative. Thanks

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