Employer mistakes with leave of absence policies can be costly

Originally posted September 18, 2014 by Linda Hollinshead on http://ebn.benefitnews.com.
The Family and Medical Leave Act and the Americans with Disabilities Act have been in effect for more than two decades. Yet, these laws continue to present challenges for employers seeking to balance the legal entitlements of employees against the need to meet operational and workload demands.

While both FMLA and ADA provide employees with the right to take a leave of absence under qualifying circumstances, employers often lose sight of the fact that the combination of these laws, as well as state leave law obligations, may increase employer responsibilities. When employers fail to consider their legal responsibilities under each law, the potential for legal exposure increases significantly.

Leave of absence issues can be frustrating for employers – particularly when a recently hired employee develops a medical issue that results in an inability to work. Most employers would like to tell new employees that their short tenure disqualifies them from leave. Yet, even where an employee does not meet the FMLA eligibility requirements because he has not worked for the employer for a total of 12 months, worked 1250 hours in the 12 month period preceding the commencement of the leave, or works at a small work site, that new employee, if disabled, may still be entitled to a leave of absence under ADA or applicable state law.

Likewise, even after an employee has exhausted FMLA leave, employers must be careful not to prematurely terminate an employee who cannot resume duties immediately and on a full-time basis.

The ADA and applicable state law require an employer to consider whether additional leave is a reasonable accommodation or presents an undue hardship and must be prepared to consider providing other types of reasonable accommodations (e.g., adjusted work schedule, work from home arrangements or the removal of non-essential job functions) to enable the employee to return to work.  The failure to consider the potential leave obligations to an employee both before and after the use of FMLA leave creates significant legal exposure for employers.

Another area of concern for employers is the new EEOC guidance regarding pregnancy discrimination. The FMLA provides leave to employees related to the birth and care of a child. Moreover, while under the ADA, pregnancy is generally not considered an impairment and, therefore, not a disability, employees may have other medical conditions or impairments related to their pregnancy (e.g., diabetes) that are covered disabilities and for which an employee may be eligible for leave or other reasonable accommodations.

More recently, in considering an employer’s obligation under the Pregnancy Discrimination Act not to discriminate against employees on the basis of pregnancy, the EEOC has emphasized that an employer is obligated to provide leave and hold a position open for an employee with a pregnancy related absence for the same length of time that positions are held open for employees on temporary disability leave.

As an enforcement matter, the EEOC appears to be taking the position that pregnant employees with medical conditions are eligible for leave as an accommodation, even if not disabled. Similarly, some state and local non-discrimination laws (e.g., New Jersey and Philadelphia) have more recently expanded employers’ obligations to accommodate pregnant employees.

This trend requires that employers view their obligation to provide leave to pregnant employees more broadly than just the FMLA and should be prepared to consider and grant leave requests (and provide job protection benefits) to such employees even where FMLA is not applicable.

In many instances, an employee seeking a leave of absence for his or her own medical condition has also applied for short term disability or workers compensation benefits. Employers should be cautious not be base their decision on whether to approve an employee’s leave request on an insurance carrier’s decision regarding insurance benefits.

For example, while an individual may be denied short term disability benefits under an insurance plan’s definition of a covered condition, this does not diminish the fact that the employee may still have a serious health condition necessitating a leave of absence. Similarly, when an employee is denied workers compensation benefits while the carrier investigates whether the injury was work-related, the employee may still be disabled under the law, and therefore, entitled to a leave as an accommodation.

Given the varying definitions of qualifying conditions under the insurance contracts, employers should not rely on the carriers to make a determination of leave eligibility. Instead, employers take control of the leave approval process and require employees to directly provide supporting medical documentation.

In light of the complexities of managing the various leave laws, employers should regularly review and update their leave policies to ensure they adequately address obligations under the FMLA, ADA and state law. In particular, references to a fixed leave period after which employment is terminated should be removed and descriptions of the availability of disability and workers compensation insurance benefits should be clearly stated as insurance benefits, not leave entitlements.

Finally, managers should be trained to report all employee requests for leave to human resources to enable the prompt assessment of the obligation to provide leave.


Study Reveals Importance of Personal Interactions in Return-to-Work

Originally posted March 03, 2014 by Kristy Tugman on http://www.voluntary.com

Most HR managers are aware of the impact that disability absences have on an organization’s bottom line. But what they may not realize is that the costs associated with these absences are also having an effect on the global economy, as businesses everywhere struggle with getting disability-related costs under control. In fact, one study showed that disability costs were 8 to 15% of payroll in 2002. Seven years later, a similar study found that statistic to hold true, while also suggesting that disability costs would rise by 37% in the future due to the aging population.

Other studies confirm that disability costs are indeed a concern for countries around the world: the U.K., Denmark, Sweden, Norway, Australia and Canada all report escalating disability payments. In Norway, for example, disability payments are about 2.4% of the country’s gross domestic product. And Canada reports that close to 10% of its working population is receiving disability benefits.

Unfortunately there’s no magic bullet for solving the challenge of disability absences, as employers have come to realize. But with so little research supporting effective techniques for return to work, most employers would agree that it’s time for researchers to explore the possible factors − particularly behavior-based techniques that have shown promise − involved in helping employees get back to work successfully.

A recent qualitative study of employees in a cross-section of industries, including manufacturing, television production, financial services and the legal profession, explored patterns and trends of those who went out on disability and their return to work experience. The findings were particularly instructive for employers seeking answers for how to motivate employees on disability to make the transition back to work.

Positive and negative consequences

The study identified several key themes of note, starting with the consequences of not returning to work. The researcher concluded that participants in the study experienced a range of consequences that evolved throughout their experience of being out of work. These included negative consequences, such as financial impact (not having enough money to pay the bills), a loss of personal identity (defining one’s self in terms of job duties) and a loss of control (over one’s destiny). Yet consequences could also be positive, with some participants expressing relief that they didn’t initially have to resume their job duties.

It also became clear that personal interactions were very important as motivators, and were linked to both positive and negative consequences. Not surprisingly, the most significant interactions for employees were those with their co-workers and managers. Employees who experienced negative interactions with their manager had a decreased sense of connection with their employer – and were less motivated to return to work. In addition, participants indicated that when their manager reached out to express concern about their disability, it helped to strengthen their sense of loyalty to the company. However, if a manager reached out only to inquire about when they planned to return to work, it put undue pressure on the employees and created anxiety.

Interactions with co-workers were even more significant for employees. Employees noted that positive interactions with their fellow workers made them feel as if they “owed” it to their peers to return to work. But when co-workers failed to reach out to those who were out on disability, employees said they felt a strong sense of disappointment and isolation.

Although it may seem counter-intuitive, the study revealed that negative consequences related to a loss of identity and control were factors that led to return to work in many cases. Employees expressed a direct connection between their identity, self-worth and work. Some participants said they were motivated to return to work because they feared “losing themselves” if they did not.

Likewise, when employees gave control to their physician about their return to work, they were not as likely to return. Initially, most of the participants did release control to their doctor, but as they began to recover from their disability, they slowly took control back through small steps toward independence and each made the decision to get back on the job as they felt more in control.

The findings from the study have clear implications for employers. For example, although co-workers play an important role in helping employees with disabilities feel connected to the company, they are often unsure about how to appropriately stay in touch. Some said they didn’t want to bother the employee or intrude on what they were going through. One simple way to reach out is to send a card from the team, letting the employee know he or she is being thought of. In addition, managers can contact the employee to ask about their well-being, rather than requesting a return-to-work date.

Employers also need to realize that what type of consequences the employee is experiencing can be useful in helping overcome the barriers to return to work. The study showed that what an employee was thinking and feeling played a significant role in influencing the level of recovery. For instance, when employees started to believe they were in control, they felt a sense of empowerment. When they began to take responsibility for their productivity, they saw it as a positive sign that they could adapt and ultimately recover and return to work.

If rehabilitation practitioners and employers can understand the consequences an employee is experiencing, they can both interact and intervene more effectively with their employees who are out on disability to produce a successful return to productivity – an outcome that is beneficial to all.