Employer action to curtail leave abuse often runs into a regulatory morass created by different laws. While leave is generally covered under the Family and Medical Leave Act (FMLA), if an employee has a disability it is covered under the Americans with Disabilities Act (ADA); if the employee has suffered some kind of injury during the course of work, this is covered under workers compensation state laws and policy; and both of these situations are often reasons for an employee to take leave. These three laws set up what is known amongst experts as a ‘Bermuda Triangle’ of laws – a mysterious problem area for employers to traverse. How is an employer supposed to, then, deal with the intersection of these three laws – the FMLA, the ADA, and Workers Compensation?
When employees apply to go on prolonged leave, leaving the employer with pending work, it creates situations where the employer feels fully justified in terminating the employee; the employer has to restrain such intentions because of the FMLA, which might land him into legal trouble. But sometimes, even after FMLA leave is exhausted, employees might still be entitled to leave under the ADA. Attempting to terminate an employee under such grounds might leave the employer highly vulnerable to statutory FMLA retaliation, complaints and EEOC action.
Detecting and Dealing with Abuse
An employer dealing with an employee taking protracted leave which causes hardship for the company will probably find himself or herself ready to take action, especially if the employer discovers that the employee was misleading the employer. Often, finding out through social networks or hearing rumors makes employers act prematurely. Here are some informative guidelines on how to deal with situations such as these.
- Ask the right questions at the time of the request/extension of leave
At the point in time that an employee makes a request for leave under FMLA or requests to extend leave already taken under the ADA or Workers Compensation, the employer should take care to gather and determine all the facts. Asking the employee to state clearly in writing all the relevant details – the nature of the problem that is causing him to ask for leave, the estimated time period this leave will extend to, etc. would be important. Providing a written record on behalf of the company outlining the reason and the estimated time of return of the employee to the employee ensures that the employer’s bases are covered. It should also clearly indicate that if there are to be any changes or extensions or reasonable accommodations to be made, the employee should communicate them to the employer as soon as possible.
- If there is reasonable suspicion/grounds of abuse, start an investigation
The biggest mistake made by employers is that often, in the face of what they consider to be obvious or clinching evidence, employees are terminated without due process – this empowers their complaints. The employer should immediately initiate an investigation, and only act to terminate based on the findings of the investigation – even if the conclusion is obviously a foregone one. In this manner, the employer can show that no stone was left unturned and that the employee had an opportunity to explain his or her behaviour. Automatic termination and automatic termination procedures acting upon leaves and their abuse have led to million dollar class action suits, showing how vulnerable your company might be to liability in such cases, especially when the ADA or workers’ compensation laws apply.
- Set out a clear and comprehensive policy that deals with all these situations
Prevention is always better than a cure – it’s a cliché because it’s true. Creating a concrete and cohesive policy is the best answer to these situations, as the employee can be shown to be forewarned and the employer is armed with the processes and systems that will shield him from both abuse and possible legal ramifications. However, the Bermuda Triangle is not so easily navigable – it takes guidance and information to craft out the best and most useful policy that covers all the possible legal scenarios. Good Human Resources training programs exist that provide the most informative guide to resolving FMLA, ADA and Workers’ Compensation based leaves.
If you wish to create a good policy to prevent employee abuse of leave regulations, protect yourself from the headache of catching and dealing with this abuse, and shield yourself from the legal liability associated with FMLA, ADA and workers’ compensation, sign up for a live Webinar on dealing with employee leave abuse, conducted by noted expert and employment lawyer, Mark Tabakman.