LAS VEGAS — Leave management under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and the intersection of the two creates a significant pain point for HR professionals. A recent survey by the Standard revealed that around 60% of employers would give themselves a letter grade of C, D or F at managing employee absence and disability.
Eric Meyer, attorney at FisherBroyles, presented a series of tips for HR pros managing leave at the Society for Human Resource Management 2019 Annual Conference.
1. Designate FMLA leave
In 2014, the 9th U.S. Circuit Court of Appeals held that an employee could choose to "save" her FMLA leave, instead using vacation time to care for her ailing father. The U.S. Department of Labor (DOL) published an opinion letter that negated this ruling. Instead, DOL made its position clear that an employer may not allow employees to use paid sick leave, vacation or other types of leave instead of FMLA leave, even if that's what employees say they prefer. Follow DOL's lead, Meyer said.
2. Certify correctly and consistently
FMLA certification can turn nightmarish when an employee turns in a certification form lacking key information. "If you have a certification where you're not certain, that has blanks, send it back," Meyer said. If the employee returns it with all fields filled out but the leave manager is still unsure about the validity of the leave, the manager should request a second opinion from another medical provider. "Heck, you can go for a third opinion. I've never seen that before, but you can," Meyer said.
It's important for HR professionals to understand they do not have to recertify leave requests for employees who have been certified for intermittent or continuous leave, Meyer said. There are some situations that call for that, however; if the employee's circumstances change significantly, it's okay for employers to ask for recertification. This is appropriate, for example, if an employee needs leave for a new serious health condition, Meyer said.
3. Consult a lawyer
It's likely HR professionals will need to decide whether to grant leave to workers who have already used their allotted FMLA leave. This leave could be a reasonable accommodation under the ADA, which could obligate employers to provide it, depending on the circumstance, Meyer said. It's not clear how much of this leave employers are required to provide, however; the ADA tells employers to be reasonable. State law may influence this decision, too.
"You all have state statutes," Meyer said. "Make sure you consult a lawyer when you're talking about how much leave to provide someone beyond FMLA."
4. Expect the FMLA and ADA to overlap
"The [U.S. Equal Employment Opportunity Commission] takes the position that when someone requests FMLA for a serious health condition, that in itself is an accommodation for the ADA," Meyer said.
5. Take part in an interactive dialogue
"Communicate," Meyer said. "That's important." It's worth noting that participating in an interactive dialogue is not per se a requirement of the ADA, but courts tend to favor employers who can show they communicated with the employee to determine an accommodation and ensure its success.
6. Train your managers
Attendees at Meyer's presentation voiced their agreement with this piece of advice. Managers must know, for example, that they should never mention an employee's FMLA leave in a performance review — especially a written one. It's important managers know enough about the FMLA to recognize when an employee is requesting to take FMLA leave, even if the employee doesn't realize he or she is making this request. And managers need to be able to spot FMLA abuse and deal with it properly, Meyer said.