Joe Aitchison, SPHR
BASIC Vice President
BASIC Senior Client Advisor
Employers having 50 or more employees are more at risk with regard to FMLA due to the ever expanding regulations at the State and Federal level. In addition, the Americans with Disability Act as Amended (ADAAA) adds more complexity when evaluating an employee’s return to work and accommodation. Also, don’t forget the Department of Labor (DOL) clarification of “In Loco Parentis” expanding who is eligible for Family and Medical Leave (FML) to care for an underage child.
These complex regulations are making it difficult for employers to understand and remain compliant with FMLA laws. We remind employers to be consistent when determining FML for employees.
FMLA Best Practice Recommendations
- Review current FMLA and other Leave Management Policies to make sure that there are no discriminatory requirements in policy (or procedure) as it pertains to leave. An example is requiring an employee who is out on personal FML for medical reasons to provide a medical return to work but not require a medical return to work from an employee who is returning from non-FMLA medical leave. Continuing the example, “an employee returning to work from a continuous FMLA leave must give the employer 1 week notice in advance of the scheduled return to work date” as compared to “an employee returning from a personal leave must provide advance notice to the employer.” This could be viewed as a discriminatory practice if the treatment of a qualified FML is more stringent than other leave programs.
- Train Managers and Supervisors on current FMLA / ADAAA policies and procedures. This includes FMLA / ADAAA document training.
- Verify that the proper FMLA and ADAAA notices are posted and educate HR representatives to make reasonable inquiries regarding conditions and work restrictions.
- Understand how to calculate work hours when determining “12 weeks of time” when an employee is out intermittently from work due to a qualified FMLA reason.
Promptly respond to the queries of employees regarding their time counted towards hours worked, special accommodation requests or any topic related to FMLA or ADAAA.
FMLA & the ADAAA
What should employers do to comply with these new regulations?Remember that the ADAAA covers job applicants, employees and past employees. The Department of Civil Rights (DCR) expects to see an increase in the number of job seeker discrimination cases filed by individuals turned down for positions based on discriminatory actions by employers denying employment to disabled individuals who are otherwise qualified for positions.The challenge employers face is understanding ADA disabilities, accommodation, FMLA and return to work (with or without) restrictions. Job descriptions (and/or job profiles) need to be reviewed and perhaps rewritten to identify the essential job functions of the position, physical requirements to perform the primary duties and to ensure that the language used is not discriminatory against otherwise qualified individuals.The DCR has stated that it will focus on employer’s efforts to accommodate individuals with disabilities when reviewing claims by employees more so than the reasons why the employer cannot accommodate.Our recommendation for employers is to:
- Make every effort to accommodate individuals with disabilities,
- Note other actions taken by the employer to accommodate the individual with a disability before altering the disabled individual’s employment position or status, and;
- Note the reasons why an accommodation failed.
With the expansion of ADA, it is easier for an employee to take leave to care for an adult child with a serious health condition. Some examples of qualified ADA / FMLA leave include developmental disabilities, brain damage, paralysis, serious illnesses that are long term and an accident that seriously impacts major life activities. Temporary conditions (lasting less than 6 months) are typically not ADA qualifying such as pregnancy-related disabilities and routine surgeries but these conditions may qualify under FMLA.We encourage you to join us for BASIC’s upcoming FMLA / ADAAA Webinar; we will discuss these issues, FMLA, “In Loco Parentis” and other related matters.