Thursday, November 15, 2018
 

Leave Troubles Can Linger for Employers

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The federal government continues to tweak the rules regarding the Family and Medical Leave Act (FMLA), giving employers another reason to carefully review their leave policies.

Most recently, the Department of Labor (DOL) issued a new proposed rule that would extend leave for family caregivers of U.S. veterans up to five years after the veterans leave the military, according to a DOL press release. Presently, the law only covers family members of service personnel who are currently serving.

The proposed rule also would make FMLA more accessible to airline flight crews by altering the eligibility requirements and changing how flight crews' hours are calculated when determining FMLA leave.

This proposal adds yet another wrinkle to FMLA compliance. According to Steve Peltin of Foster Pepper PLLC, leaves of absence often are the most complicated -- and frustrating -- aspects of HR administration.

FMLA provides workers with up to 12 workweeks of unpaid leave within a 12-month period. However, who is eligible -- and when -- depends on a myriad of factors, including employer size, how long the employee has worked for the company and where employees put in their time, Peltin noted in a recent online posting.

Military service can make compliance even more tricky. The law contains seven "qualifying military exigencies" that affect the FMLA calculation for military personnel, all of which depend on a variety of situations and military obligations, according to Peltin. Then, of course, there is leave for caregivers of servicemembers, which the proposed rule would expand.

On top of all that, other laws -- specifically the Americans with Disabilities Act (ADA) -- often overlap and affect leave policies. Peter Susser, writing for SmartHR Manager, notes that terminations that follow FMLA leave can run against ADA.

Susser provides this scenario: "An employee is granted FMLA leave to treat a serious health condition that poses long-term restrictions and limitations; 12 weeks pass; the employee fails to return to work; company terminates employee under a 'no-fault' absence policy." Because the employer provided 12 weeks, there's no problem, right?

Don't count on it, Susser writes. The employer could be violating ADA if the worker's "serious health condition" is considered a disability. If both laws apply, the company might have to grant more leave as a reasonable accommodation or face serious consequences if it terminates the employee.

When grappling with FLMA and ADA questions, documentation is the best policy, according to Susser. "HR managers should document every telephone conversation, email exchange or letter sent to employees while they are on leave," he writes, adding that any terminations should be executed carefully, keeping in mind the intertwined nature of FMLA and ADA.

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