Can You Legally Terminate An Employee Who Does Not Return To Work After FMLA Leave Ends?

By guest author: pmphrblog for Portnoy, Messinger, Pearl & Associates, Inc. Tri-State area human resources and labor relations consulting firm.

If you are a private employer with 50 employees or more, you must be aware of both the

Federal and your state’s version (if any) of the Family and Medical Leave Act (FMLA), and the paperwork that goes with its administration. FMLA guarantees certain employees up to 12 workweeks of unpaid leave each year with no threat of job loss. Some states are more generous and offer higher amounts of unpaid leave. FMLA also requires that employers covered by the law maintain the health benefits for eligible workers just as if they were working.

Like any workplace regulation, there are always unusual circumstances that need to be reviewed carefully by the employer. Employers must also have a sense of how courts have interpreted the rights of the employee under these circumstances.

When assisting organizations with FMLA administration, employers often ask PMP how to handle an employee who cannot return to work after the FMLA ends. At this point, the employer is left in a quandary — does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks provided for under the Family and Medical Leave Act? Before an employer does either of the above, it should analyze whether the Americans with Disabilities Act (ADA) or other workforce regulations could affect the decision. How an employer handles these requests could mean the difference between a grateful employee or an expensive lawsuit.

In order to be able to determine if you must grant additional leave as an ADA accommodation, you must first determine whether the employee’s condition qualifies as a disability under the ADA. The employer should review the request keeping these five points in mind:

• Engage the employee in an interactive process to determine how much additional time is being requested.
  

• Review the employee’s revised medical certification to see how much additional time is actually necessary.  Unlimited leave is not considered a “reasonable accommodation.”

• Review and document how the employee’s request for leave impacts your business and operations.

• Determine whether continued leave poses an undue hardship.

• Review past practices.

Employers should be very reluctant to terminate an employee solely because the employee has exhausted his or her FMLA or some other employer-provided leave. Employers should evaluate each request on a case-by-case basis, and be able to defend any decision that denies the extension of leave.

According to a recent article, FMLA lawsuits have been steadily increasing. In 2012, there were 406 new federal FMLA cases filed nationally. In 2013 that number more than doubled to 992. In 2014, there were 1,115 FMLA lawsuits filed. If you are unsure of how to interpret the FMLA, ADA, or other workplace regulations, it is prudent that you contact an HR Professional who is well versed in these laws. For a small consulting fee, you may be able to avoid a very large lawsuit. Which makes more sense – consulting or litigation? That’s a no-brainer.

This article is intended for general information only and should not be constructed as legal advice. Contact PMP with any questions regarding FMLA matters by emailing Mark@pmphr.com or calling (516) 921.3400.

About Portnoy, Messinger, Pearl and Associates:

Portnoy, Messinger, Pearl and Associates, Inc. (PMP),  the oldest labor relations consulting firm representing management on Long Island, was founded in 1964 by former union organizer and worker’s rights advocate, Murray W. Portnoy.  Initially, Murray offered human resource consulting and union contract negotiating services to a handful of clients. Today PMP has a full staff of experienced and talented human resources and labor relations consultants, labor and employment attorneys, and administrative personnel. Murray Portnoy's values and vision remain at the core of PMP's mission and principles. 

Rewards and Recognition: Are You Doing Enough to Acknowledge Employees’ Hard Work?

             Forbes reported in 2012 that there is a $46 billion market for employee recognition programs. With it being such a huge market, clearly employee recognition is important for every organization to consider. Research from Bersin indicates that in “organizations where recognition occurs, employee engagement, productivity and customer service are about 14% better than in those where recognition does not occur.” With our interest piqued, Astronology® will dig deeper into the topic of employee rewards and recognition, and explore best practices for these programs.

            Employee recognition programs can vary, from the very simple and inexpensive to the elaborate.  No matter where your organization falls on that continuum, the stakes are high when considering the impact of a low recognition culture on an organization’s bottom line.  What are some consequences of ignoring the need to recognize employee contributions? 

• Low productivity and low performance
•  Negative attitudes and a poor team culture
• Increased absenteeism 
•  Low employee retention rates and increased turnover rates

            It’s safe to assume that no organization would like to have to address and reverse any of these issues. And yet, doing something doesn’t mean that it will be a success.  Even more unsettling is learning that you can have a rewards and recognition program and still not meet the needs of employees. How so?

            Susan M. Heathfield’s article featured on About.com points out that, for starters, many organizations believe in the “one size fits all” model when it comes to employee recognition and rewards. This results in narrow thinking when deciding when and how employees should be rewarded and recognized. As a result, employee complaints, jealousy, and dissatisfaction become prevalent.  Guidelines to consider in order to create a sharper rewards and recognition program for your organization include the following:

• Decide what you want to achieve through your employee recognition efforts.  A program cannot solve all problems and motivate everyone to do everything.

• Create goals and action plans for employee recognition.  Metrics focus activity towards the relevant and significant.

• Ensure that fairness, clarity, and consistency are important to and evident in the program.

• Avoid “employee of the month-type programs.” These approaches are usually not clear to employees and lead to accusations of “pet employees” receiving the awards.

•  Recognize all people who contributed to a success equally.

Heathfield highlights a program to increase attendance that can spur your organization’s brainstorming in the area of employee rewards and recognition.  An organization hands out a three-part form or three-part certificate.  During the organization’s weekly staff meeting, one form is given to employees who had perfect attendance the previous week. The second form is kept in the personnel file.  The third form is entered in a monthly drawing for gift certificates. The goal and action plan for the program are clear, the raffle catches employees’ interest, and the approach avoids the angst that “employee of the month” programs can cause.

           

Forbes also gave the following best practices for employee recognition programs.  Consider these when developing a new or reviewing an existing employee rewards and recognition program.

•  Recognize people based on specific results and behaviors. Leave the “employee of the month” mentality and deliver awards based on specific actions.

• Implement peer to peer recognition, rather than the traditional top down approach. According to Forbes, “peers know what you’re doing on a day to day basis, so when they ‘thank you’ for your efforts the impact is much more meaningful. Top-down recognition is often viewed as political and it rarely reaches the ‘quiet but critical high-performers’ in the company.”

• Share recognition stories: Story telling is powerful. Sharing recognition stories can build camaraderie.

• Make recognition easy and frequent.  Make it simple and clear for everyone to participate, receive, and enjoy.

•  Tie recognition to your own organizational values or goals: “Too many CEOs and managers focus on bottom line results without thinking about how it feels to slog away and work without anyone saying thanks.”

            Has your organization established a rewards and recognition program? Does your organization adhere to some of these suggestions? What works best for you? We'd like to hear from you! Please submit your response to Astronology® and we may feature your response!

Compensation Lexicon

It can be challenging learning the terminology connected to HR compensation.
Luckily, we here at Astron created an infographic breaking down some terminology you may encounter. Click the link here to see it.

Hope you find it helpful!

Facial Hair, Tattos, and Scents: HR Issues You May Not Know You Need to Handle

Two very popular past Astronology articles are 2008’s “Facial Hair in the Office? Pros and Cons” and “Readers Response: What are Typical Policies Regarding Female Employees with Tattoos and Body Piercings?” Has much changed in the past eight years since we’ve last discussed these topics? In this issue of Astronology we explore changing policies on facial hair, tattoos, and scents in the workplace.

With the growth of “Movember/No-Shave November,” an Australian originated annual event to raise awareness of men’s health issues such as prostate cancer, the popularity of various forms of facial hair has increased.  In fact, a 2013 study conducted by the American Mustache Institute noted that “71% of Americans surveyed said they work with a ‘Mustached American male or female’.”  As a result, some organizations have revisited their facial hair policies.  For instance, Disney began allowing beards and goatees in the workplace in 2012. The HRZone website commented that events such “Movember” give organizations the opportunity to promote men’s health and well-being in the workplace.

According to a 2010 Pew Research report, nearly four out of 10 surveyed Millennials have a tattoo.  Half of that number have two to five tattoos.  18% have six or more tattoos.  With Millennials already in the workforce, and in some cases taking leadership positions, the attitude towards tattoos slowly has been changing.  A 2013 Forbes article quoted consulting firm CEO John Challenger as saying “Even in this tight job market, most companies aren’t going to view tattoos too harshly. Companies have a vested interest in hiring the most qualified candidate.”  To follow, Bank of America spokeswoman Ferris Morrison expressed, “We have no formal policy about tattoos because we value our differences and recognize that diversity and inclusion are good for our business and make our company stronger.”  A USA Today online article suggests the current struggle to totally include employees with body art stems from three areas of concern:

·       The belief that an employee will not be taken seriously by traditional-minded clients.

·       The concern that the organization’s brand or image might be compromised by outlandish tattoos.

·       The concern that one person’s body art could be perceived as offensive or hostile to a co-worker or customer.

All three concerns are understandable. So where can employers meet in the middle with their employees?  It’s helpful that many employees and candidates are aware of the concerns organizations have with tattooed employees, and have taken matters in their own hands by having tattoos hidden by clothing or make-up. The same Pew Research report mentioned above also found 70% of tattooed Millennials say their tattoos are hidden beneath clothing.  Organizations are also within their rights to create tattoo concealment policies that fit their corporate cultures and don’t infringe on employees’ rights.

Fragrance concerns is an area our previous articles did not discuss.  According to a survey conducted by the University of West Georgia, 30% of people find scented products irritating.  People with asthma or chemical sensitivities may find some strong fragrances harmful, as the scents can trigger allergy-like symptoms. In recent years there have been concerns about offensive fragrances, with resulting lawsuits:

·       In 2005, Susan McBride, a senior city planner, sued the City of Detroit.  She claimed that the strong perfumes and other grooming practices of others caused her breathing difficulties.  As a result, the city council violated the Americans with Disabilities Act by failing to provide Susan reasonable accommodation. In 2010 the case was settled out of court for $100,000. To prevent future lawsuits, the City of Detroit adopted a policy to keep the workplace scent free. This policy covered all scent based products such as candles, air fresheners, and even magazine samples.

·       In the same year, Doris Sexton sued her employer, Cumberland Manor Nursing Home, because she claimed a perfume sprayed by her co-worker left her permanently disabled and unable to work.  Although New Jersey courts rejected the claim, an appeals court held that the employer was liable, since breathing contamination poses a risk at work. Companies must make accommodations, such as special seating arrangements, for people suffering from allergies.

As a result, the concern around crafting fragrances policies has grown. This particular policy is challenging to design.  Depending on the workplace environment, deciding how far an accommodation an organization can reasonably provide can be difficult. The recent Brady v. United Refrigeration case serves as an example of this challenge. Although the employer tried to make what it considered to be “reasonable accommodation,” the employee still had challenges from scents in the workplace. Brady alleged that as a result of her continuing health concerns, she was fired. In June 2015 the employer’s motion for summary judgment was denied.

The best place to start in discussing such policies is with legal counsel. These areas are ever-evolving.  Getting current legal advice on how to best handle these areas will keep your organization’s environment safe and productive.

Does your organization have a facial hair, body art, or fragrance policy in place? Please share with Astronology! We love hearing from our readers!