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.
