MANAGING EMPLOYEE ABSENCES

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MANAGING EMPLOYEE ABSENCES
By Lawrence P. Postol, Esquire SEYFARTH SHAW
LLP 815 Connecticut Avenue, N.W., Suite
500 Washington, DC 20006-4004 (202)
828-5385 Lpostol_at_seyfarth.com
Mr. Postol is a partner in the Washington,
D.C. office of Seyfarth Shaw, which has offices
in Atlanta, Boston, Chicago, Houston, Los
Angeles, New York, Sacramento, San Francisco,
Washington, D.C., and Brussels. Mr. Postol
graduated from Cornell Law School in 1976. Mr.
Postol represents management in employment and
labor law. Mr. Postol has successfully argued
two cases before the United States Supreme Court
and twenty-five cases before the United States
Court of Appeals. Mr. Postol has written two
books and over 75 articles in the employment law
area.
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OVERVIEW

• Company Policy
• Family Medical Leave Act (FMLA)
• Americans With Disabilities (ADA)
• Workers Compensation

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• ERISA Short Term And Long Term Disability Plans
• Other Laws
• Terminating The Employment Of The Problem Employee

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COMPANY POLICY

• No Legal Requirement To Give Paid Vacation Nor
  Paid Sick Leave
• Need Only Give Unpaid Leave As FMLA, ADA, And
  Other Laws Require

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• But If Give Paid Leave As A Matter Of Company
  Policy, That Is A Contract And It Should Be Clear
  On All Issues

• Who Gets It, e.g. Temporary Workers
• When It Can Be Used

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• How It Accumulates
• Carry Over
• Payment When End Employment

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FRAMEWORK FOR ANALYZING AN EMPLOYEES REQUEST FOR
MEDICAL LEAVE UNDER FMLA, ADA, WORKERS
COMPENSATION LAWS
A. Checklist of Issues When An Employee
Notifies You of an Illness or Injury
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• 1. The Right to Leave

(a) Is the company a covered employer?

• FLMA Fifty or more employees?
• ADA Fifteen or more employees?
• Workers Compensation One or more employees

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(b) Is the employee eligible for protections
under the laws?

• FLMA Three questions

• Worksite with fifty or more employees or fifty
  employees within seventy-five miles of worksite?
• Employed twelve months?
• Worked 1,250 hours?

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• ADA and Workers Compensation All employees of
  covered employers

(d) Did the employee give the proper notice?

• FMLA Proper notice for leave depends on the
  following

• if need for leave is foreseeable thirty days.

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• If need is not foreseeable as soon as
  practicable.
• If taking paid leave under employers policy
  notice required in the policy

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Caution The Employee Need Not Use The Term FMLA
Leave. If Know Of Illness, That Maybe Enough
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• ADA No notice requirements other than an
  employer must know of a disability and request
  for accommodation.
• Workers Compensation Some states have a
  waiting period and require injuries to be timely
  reported

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2. Medical Verification and Certification of the
Right to Leave
(a) May the employer require a doctors statement
or medical examination?

• FMLA Employee has 15 days to submit doctors
  certification form ( if the employer gave proper
  notice of this requirement). The Employer can
  not question doctor nor get medical records. Can
  only request belated second opinion.

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• ADA May require an exam as long as it is
  job-related and consistent with business
  necessity.
• Workers Compensation Once an employee has
  claimed benefits, an employer may require a
  medical examination to evaluate injury.

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(c) May the employer question the certification
or results or medical examination?

• FLMA Second opinion and then a third opinion
  which is binding

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• ADA An employer may request a second opinion if
  job-related and consistent with business
  necessity.
• Workers Compensation Yes, IMEs are routine

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3. Considering Alternative to Leave
(a) May the employer require light duty or
reassignment instead of leave?

• FLMA No.
• ADA Yes, job restructuring and transfer to a
  vacant job are reasonable accommodations.

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• Workers Compensation. An employer may require a
  return to light duty, if the employee is
  medically released to light duty the employee
  otherwise risks termination of disability
  benefits.

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4. Type of Leave Employee Has the Right to Take
(a) If the leave requested is intermittent or
reduced schedule, is employee entitled to such
leave?
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• FLMA If medically necessary for the workers
  condition, then yes, as an absolute right.

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• ADA As a reasonable accommodation, assuming no
  undue hardship.

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• Workers Compensation No, but as a practical
  matter, an employer may encourage an employee to
  remain on the job.

(b) If the leave requested is intermittent or on
a reduced schedule, does the employer have any
special rights?
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• FMLA Two rights

• If leave is for planned medical treatments, the
  employee must attempt to schedule leave so that
  there is no disruption to business.

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(2) If leave is foreseeable, based on planned
medical treatment, the employer can temporarily
transfer the employee to another position with
same pay and benefits, that better accommodates
the work schedule.
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• ADA An employer must provide a reasonable
  accommodation which works, not necessarily the
  accommodation the employee prefers.

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(c) May the employee take paid leave?

• FLMA An employer may require or an employee may
  elect to substitute paid vacation, personal or
  medical or sick leave for unpaid FMLA leave. Can
  not require under DC FMLA.

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• ADA paid leave may be used as a reasonable
  accommodation, but an employer is not required to
  provide additional paid leave as an accommodation.

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• Workers Compensation Employees leave is paid
  according to the rate specified in the state
  workers compensation statute.

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5. Is Employees Job Protected During Leave?

• FMLA Job Protection is guaranteed.
• ADA Maybe. As a rule of thumb, a one year
  unpaid leave of absence is the upper limit of
  reasonableness.

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(c) Workers Compensation Job protection is not
guaranteed, but it is unlawful for an employer to
impose an adverse action on an employee in
retaliation for the filing of a workers
compensation claim. Moreover, some states
provide protection during the initial disability,
e.g., Virginia 6 months from the date of injury.
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• CLAIMS UNDER ERISA SHORT TERM OR LONG TERM
  DISABILITY POLICIES

• Plan should provide discretionary authority.
• Plan should allow medical examination.

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• Coordination problems with plan.

1. Excessively generous benefits. 2. Poor
administration
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• OTHER LEAVE LAWS

A. Military Leave Uniform Services Employment
and Reemployment Rights Act (USERRA) National
Guard Reservist
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B. DC FMLA 1. Coverage 1000 hours over 12
month 2. Leave 16 Weeks over 24 month
period 3. Can Not Require Concurrent Use Of
Paid Leave
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C. DC Parental Leave 1. 24 Hours In Any 12
Month Period To Go To School Related Events Of
Employers Children 2. Leave 16 Weeks over 24
month period 3. Can Not Require Concurrent Use
Of Paid Leave
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D. Maryland Adoption Law 1. Must Provide Same
Paid Leave As Give For Childbirth E. Maryland
Victim Leave Law 1. Protection For Victim Of
Crimes Who Must Attend Court
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F. Maryland Emergency Response 1. Protection
For Volunteers G. Voting 1. DC Has No
Statutory Authority Requiring That Employers Give
Its Employees Time Off To Vote
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2. Maryland Requires That Employers Give
Employees Two (2) Hours Time Off To Vote, Unless
The Employee Has Two Consecutive Hours Of
Off-Duty Time While The Poll Are Open. The
Employer Shall Pay The Employee For the Two
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Hours Absence From Work. The Employer Shall
Provide Proof That He/She Voted Or Attempted To
Vote And Or Attempted To Vote And Can Obtain Such
Proof From The Election Officials Upon Request.
The Election Officials
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Can Provide The Employee A Receipt Indicating
Proof Of Voting. Md. Ann. Code,
10-315. 3. Virginia Has No Statutory
Authority Requiring That Employer Give Its
Employees Time Off To Vote.
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• TERMINATING THE EMPLOYMENT OF THE PROBLEM EMPLOYEE

A. Document Performance Problems B. Do Not
Consider Absences Potentially Covered By
FMLA C. Document Reasonable Accommodate
Considerations
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D. Patience, Patience, Patience 1. Performance
Plans E. Document, Document, Document F. Look
For Same Person As Hired, Does The Firing, So
Strong Inference No Illegal Discrimination