Leave Abuse Issues

How ‘bout those attendance policies

So many inquiries I receive from employers and H.R. practitioners center around suspected leave abuse. Many say that managing absences and staying in compliant with the FMLA and ADA are among their biggest headaches. How do you hit that sweet spot? Is it possible? Yes, it is.

 

First, and foremost: you need a point person who handles all issues related to leaving. If you have an H.R. Department or even just one H.R. Manager, that is the obvious choice. If you don’t have an H.R. Department or manager though, it can be an office manager, as long as you ensure that s/he receives proper training.
 
Here’s who shouldn’t be your point person: the direct manager of the employee requesting or taking leave. Why is that? For one thing, it’s not what you hired him/her to do, so it’s probably not his or her area of expertise. You might be thinking, “Well, rather than hire another person just to handle this issue, can’t I just train the direct managers so they can properly handle these issues?” You probably don’t need me to tell you that the FMLA and the ADA are so nuanced and often so complex that providing proper training will require time and resources that would divert your managers from what you hired them to do.
 
So, we’re back to the direct manager that doesn’t have the expertise, who often inadvertently incurs liability for the company because they mishandle the request. Sometimes it only takes one or a few comments by the manager for a claim of FMLA interference or retaliation or failure to accommodate under the ADA to stick.
 
Here’s one real, live example of what happens when you don’t have an appropriate, properly trained point person: an employer fires an employee for a two-week absence it previously approved as FMLA leave. The designated FMLA coordinator later realized that the employee hadn’t worked 1250 hours in the preceding 12 months and therefore wasn’t eligible for FMLA. The employee essentially tried a take-backsies approach. That backfired. Now the employee is suing for violation of her FMLA rights.
 
Yes, if you approve an employee for FMLA leave or lead him/her to believe s/he is eligible for FMLA leave, you can be held to the requirements even if it turns out s/he wasn’t really eligible. The case is Byrd v City of Houston. We’ll have to stay tuned to see what ultimately happens there. The point is whoever is managing your employees’ leave should be someone who knows: a) how much leave you may be required to provide to under the applicable laws; b) how much leave, if any, the employee is entitled to under the specific circumstances; and c) if there are any other relevant facts.
 
At the other end of the spectrum are employers who assume that any time an employee asks for time off due to a medical condition they have to grant it. Under the FMLA, employees have to provide enough information so that you, the employer, can reasonably determine that FMLA may apply. Even the FMLA doesn’t require you to be a mind-reader. So, for example, an employee who has medical symptoms but doesn’t tell you that those symptoms prevent him/her from doing his or her job may not be eligible for either FMLA leave or leave as a reasonable accommodation under the ADA.
 
While no “magic words” are necessary, an employee who merely stays out of work or even asks for a transfer to another position or another accommodation, without more, might not be providing sufficient information to put an employer on notice that s/he may be entitled to FMLA leave or an ADA accommodation. That is more or less what happened in a Shoemaker v Alcon Laboratories Inc (3:16-cv-02244 District Court, S.D. West Virginia) and the court upheld the employee’s termination.
 
Here are some other seemingly obvious steps you can take:

When an employee takes time off for medical issues, noting the start and intended end dates and communicating with employees about unexcused absences better enables you to successfully defend claims of FMLA or ADA violations. For employees who have a history of attendance issues, tracking both attendance and accommodation requests will show if the attendance issue preceded the accommodation request, which may enable you to defeat a failure to accommodate claim under the ADA.

I say this so often in so many contexts. Having policies is a great start but will be meaningless if you never enforce them. Employees pick up on it if you don’t take your own policies seriously and will act accordingly. For example, you are allowed to have and enforce reasonable notification and call-in procedures. You can discipline employees who do not comply with those procedures — even if they are on leave- if you can show that your employees had reason to know of those policies.

The Department of Labor has forms on its website for FMLA leave. If you use these forms you will know that you are not asking for more information than you are entitled to and you aren’t missing anything you are entitled to — unless you fail to review the forms when you get them back. An employee has 15 calendar days to get that form back to you. Track the time on your calendar. You can delay or deny the leave request if any employee doesn’t comply. If an employee brings back an incomplete form, or one with vague, ambiguous answers you are allowed to ask for corrections to the form. The employee then has 7 calendar days to get the corrected form back to you or you may be able to delay or deny the requested leave.
 
For non-FMLA leaves, you can create a similar template. Don’t use the FMLA form for non-FMLA leaves though. That could mislead the employee into thinking s/he’s on FMLA leave and you may actually obligate yourself under FMLA when you wouldn’t have been otherwise.

I know I’ve mentioned this already, but I just want to add a bit here. Your direct managers need to know enough to know when to hand the matter off to HR (or the designated point-person) and not make any comments or allow others to do so. Whoever is handling the leave request needs appropriate training to be compliant with the FMLA and ADA — and to know when to consult with employment counsel.
 
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
 
This article originally appeared here.