When and under what circumstances to allow ill or disabled employees to take leaves of absence sometimes bedevils business owners and human resource professionals. However, with knowledge and planning, dealing with employee absences can be relatively straightforward and simple. This edition of the HR Law Insider addresses the most common situations that arise and how to deal with them.
THE MOST COMMON TYPES OF LEAVE: EMPLOYEES WITH MENTAL OR PHYSICAL PROBLEMS
Below are five common examples of employee problems that trigger leave of absence requests. Here’s how to deal with them:
(1) Broken arm, flu, or similar temporary injury or illness: typically, employers allow leave or sick time for employees to deal with broken bones, the flu, and similar maladies. There is no legal requirement to allow such leave or time off. HOWEVER, once an employer does allow such leave, it should apply its policy consistently and in accordance with its employee handbook. This will eliminate the potential for viable discrimination claims based on alleged unfair treatment.
I have defended (and sometimes prosecuted) numerous discrimination claims involving, among other groups, minority, pregnant, and older workers. The inconsistent application of a leave policy — for example, allowing a 25 year old white male leave, while denying leave to a similarly situated older minority worker — is a common trigger for such claims. To defend this type of discrimination claim, a company must come forward with a bona fide business reason as to why it seemingly favored one employee over another — why it allowed one worker to take a leave while it fired the other for not coming to work.
(2) Mental disorder, such as OCD, depression, or bipolar disorder: a serious mental disorder may require an employer with 15 or more employees to make a reasonable accommodation for the employee under the Americans with Disabilities Act (ADA). A reasonable accommodation might include the granting of a leave of absence.
(3) Chronically bad back, cancer, or other chronic physical disability: an employee with a chronically bad, cancer, or other serious physical disability may have the same rights to leave as the employee with a serious mental disorder. Each situation must be evaluated carefully and on its own merits (or lack thereof). Part of the evaluation may include obtaining information from the employee’s health care provider to verify the employee’s condition and, later, to determine whether the employee is fit to return to work.
(4) Pregnancy: as strange as it sounds, in the eyes of the law a “normal” pregnancy is viewed the same as a broken arm or the flu for purposes of granting leave requests. For example, if a male employee with a broken arm is provided with four weeks’ leave, but a pregnant employee is subsequently denied leave because the employer says it “doesn’t give time off,” the latter could credibly argue that the employer has violated the Pregnancy Discrimination Act (PDA). The PDA prohibits discrimination against pregnant employees and provides that such employees shall be treated no worse than other “injured” employees that have been provided leave during an injury.
A pregnancy with serious complications may trigger application of the ADA and/or FMLA as well as the PDA. If applicable, the FMLA would require the employer to provide leave of up to 12 weeks, while the ADA might require a leave of absence or other accommodation to allow the employee to continue employment.
(5) Spouse or child of employee has serious illness: For employers with over 50 employees, an employee with a family member with a serious physical or mental problem may trigger a leave requirement of up to 12 weeks under the Family Medical Leave Act (FMLA).
IMPORTANT NOTE: Many employers fail to consider that their particular city, county, and/or municipality may also have a law(s) concerning mandatory leave. This is the exception to the rule — most do not. However, businesses should always ask counsel whether their local jurisdiction requires employee leave separate and apart from any federal or state requirements.
Understand, there are any number of employee issues that may trigger discretionary or mandatory leaves of absence. When in doubt, be consistent. Equally important, contact legal counsel if there is any concern about, or potential for, a discrimination lawsuit or other claim.
“GO TO” LIST OF TYPES OF LEAVE
The next time your business faces a potential leave of absence issue, review the following list to see if any of the following may apply:
MANDATORY TYPES OF LEAVE
- PDA (see example above)
- Jury duty
- Possible religious accommodation
- Crime victims (under certain circumstances)
DISCRETIONARY TYPES OF LEAVE
- Sick leave (non-ADA, FMLA, etc.)
- Maternity/paternity (non-ADA, FMLA, etc.)
- Personal reasons
CONCLUSION: IDENTIFY THE TYPE OF LEAVE AT ISSUE, KNOW THE LAW, AND BE CONSISTENT
Handling potential leave situations is relatively straightforward: identify the type of leave at issue, know the law and whether leave is mandatory or discretionary, and be consistent.
Long employee absences sometimes pose significant problems for employers — lost production, administrative burdens, etc. Granting a leave often requires a great degree of patience and discipline. Exercising these virtues will assure that your business complies with the law and reduces the risk of employee lawsuits.