Employers Struggle With Leave of Absence Issues

Chriss Swaney

Sarasota, FL (WorkersCompensation.com) – Balancing the various paid leave of absence laws can make for confusing scenarios at organizations seeking to accommodate their workers.

There is, of course, the federal Family Medical Leave Act (FMLA) which guarantees workers 12 weeks of unpaid leave and job protection upon return from an illness or taking care of a family member for companies that have 50 or more employees. But, there is no federal policy on paid leave.

One key issue for employers struggling with leave of absence issues surrounds the “Blanket Leave Policy.”

“This concept of terminating employment after the exhaustion of FMLA or state leave or a company leave policy has long since been a violation of the Americans with Disabilities Act (ADA),” said Kimberly Webb, JD, director of national technical compliance – ADA accommodation at Sedgwick.

Webb said that under the ADA, more due diligence is required in order to be compliant with the act.

“The interactive process must take place in order to determine the needs and limitations of the employee while balancing the needs and demands of the company,” she said. “Options for reasonable accommodations should be explored and reviewed during this process. Even if it means more time given; as long as there is a return to work date in the near future, this should at least be discussed.”

Other experts say another way leave of absence laws are evolving is to provide for mandatory leave for a wider variety of issues. Some of these laws now require mandatory leave for common issues, including caring for anyone an employee designates, meeting with the child’s school or attending a funeral. Still, the overlap between FMLA and ADA and other leave of absence laws is a challenge because they have different time frames, duration and rules around eligibility.

And for workers’ compensation claims, experts recommend that it is important to run FMLA leave concurrent with workers’ comp disability.

Leave of absence laws continue to evolve around the nation. The federal ADA and FMLA laws have been in place for many years. California and New York, for example, have implemented their own leave of absence laws that are more expansive than the federal laws.

However, challenges remain for employers struggling to find the most expedient way to deal with leave of absence issues, especially under the ADA.

Webb said one of those challenges is continuous leave. “Oftentimes, employees have conditions that require longer periods of leave of absence that were not expected at the outset of the claim,” she added.

“Doctors sometimes guess regarding the amount of time needed to return back to work, which typically results in multiple extensions of a leave of absence. This frustrates the employers and hinders their ability to properly meet productivity standards and requirements, especially when you have several employees out at one time,” Webb said.

Webb also notes that there is also the challenge of intermittent leave. That involves managing employees and keeping track of their time missed out of office. “This is particularly difficult, because some employees feel intermittent leave is a license to come and go as they please,” said Webb.

Still more organizations have silos of some type with their Human Resources and Risk Management programs operating independently. The ongoing battle becomes to try and integrate these two programs as needed to maintain compliance on leave of absence laws.

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