Ask the legal expert ... about leave-of-absence mistakes

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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP

How can we avoid some of the most common leave-of-absence mistakes administrators/owners make?

Two frequent issues that cause employers to make mistakes are Family and Medical Leave Act (“FMLA”) intermittent leave and Americans With Disabilities Act (“ADA”) reasonable accommodations post-amendments.

If an employee requests intermittent leave under the FMLA, you have a right to more information on the medical certification than “needs intermittent leave,” yet many employers fail to ask. 

You may send the healthcare provider a copy of the employee's job description and ask if the employee can perform essential functions of the job. You may (1) request that the employee's healthcare provider clarify what type of intermittent leave is needed; (2) have your leave coordinator speak with the employee's healthcare provider for clarification (after getting a signed HIPAA release); and (3) send the employee for a second opinion. 

Leave beyond the employee's 12 weeks of FMLA may be considered a reasonable accommodation in this new era. The Equal Employment Opportunity Commission certainly takes this stance and is vigorously going after employers who do not comply. Likewise, if you employ more than 20 but fewer than 50 employees, you may have to offer a disabled employee leave even if you do not meet FMLA requirements.

With ADA, remember: It now covers temporary conditions. Do not mistakenly refuse to accommodate employees with temporary disabilities. 

Finally, be consistent with your leave-of-absence policies. Make sure your supervisors and human resource professionals clearly understand how to implement your policies.