Month: July 2016

Disability Leaves of Absence: What’s an Employer to Do?

 

240_F_74851918_9o2xEnk7PIsyrql75atgQWLiG0BZ7FS7Implementing the regulations that cover leaves of absences for disabled employees can be challenging for many small companies.

A recent publication from The Equal Employment Opportunity Commission (EEOC) provides some guidance on how to resolve these thorny issues. The report is at https://www.eeoc.gov/eeoc/publications/ada-leave.cfm.

If you don’t have time to read it, here are some highlights:

  • Don’t require employees on leave to report in regularly. A phone call from you shortly before return date is OK particularly if it is to talk about reasonable accommodations.
  • When it comes to reasonable accommodations, don’t rely on a maximum days of leave policy that applies to all employees. It may be reasonable to give many more days than your maximum as an accommodation.
  • If you don’t require a doctor’s notes for ordinary illnesses, like the flu, then you can’t impose such a requirement on people with disabilities. Conversely it is OK to require a doctor’s note for all absences of three days or longer so long as it applies to all
  • When you are doing performance reviews based on productivity, don’t include the period when an employee is on disability leave of absence.
  • Leaves of absence that are open-ended or provide no return date remain unreasonable.
  • Policies that require an employee to be “100% healed” before being returned to work probably violate the Americans with Disabilities Act and some state disability discrimination laws.
  • Always participate in an interactive discussion about leaves of absence and reasonable accommodations upon return to work.

Questions? I’m always happy to consult. Please contact Judy Pearce at 650.518.0327 or by email to judypearce@hrlegalresults.

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What’s next for HR – The Spanish Inquisition?

A recent appellate court held an HR director personally liable for her actions under the FMLA. Showing again that courts are oblivious to how difficult it is to interpret the FMLA in real life. Could jail time be the next punishment when company decisions are disputed?

This is a completely unreasonable punishment. In reality, even employment lawyers, when asked to divine how to interpret the FMLA, admit they usually ask a colleague for a second opinion before rendering advice to HR professionals!