This blog was written by Rochele Bertasso, HR Business Partner at Helpside.
“Help! My employee’s been injured and says they can’t work.” Leaves of absence, whether expected or unexpected, can be daunting for many companies and the way to manage it is not always clear. Many employers ask, “Do I have to hold their job? Do I have to pay them while they are gone? What about benefits?” Adding to the confusion, are the requirements under applicable federal and state laws. So, what to do?
Consider the law
First, know which laws might apply and what you are obligated to provide under each law. For smaller companies who consistently run payroll for at least 15 employees, the Americans with Disabilities Act, or ADA should be considered. For companies with 50 or more employees, the Family Medical Leave Act, or FMLA, should be considered too. If the need for leave is a result of a workplace injury, workers’ compensation regulations and protocols will also need to be followed.
Companies covered by the FMLA must provide eligible employees up to 12 weeks or 480 hours of unpaid job and benefits-protected leave within a 12-month period. This means that while employers don’t have provide pay during leave, they do need to continue covering their portion of the benefit premiums as they did prior to leave.
If the FMLA doesn’t apply, ADA-covered employers must interact with employees and provide reasonable accommodation when doing so will help the employee perform the essential functions of their job and not pose an undue hardship on the company. The ADA does not require that the employee be paid during leave or that benefits be maintained.
Several states including Washington, Oregon, California, Massachusetts, Colorado, Connecticut, and Minnesota have additional laws to consider. As always, it is important to check any relevant state laws when an employee needs medical leave.
When dealing with on-the-job injuries, incident reports, workers’ compensation paperwork as well as drug testing may apply. Companies partnered with Helpside have access to our experienced Claims Director who can assist with getting care for the injured employee and the best possible outcome for the claim.
Consider company policy
Beyond legal requirements, companies should act in accordance with their own policies. If the company has a policy addressing parental leave, medical leave or even paid leave programs, companies should act in accordance with that policy. The general rule is to provide the greater of what the employee is eligible for under state or federal law or the benefits provided under the company policy.
Interact with the employee
Once we understand the laws that may be triggered as well as what is provided under company policy, it is time to interact with your employee to understand what the employee needs. Sometimes this is straightforward, especially when the employee initiates the conversation, and their need is clear. For example, if an employee tells you they are scheduled for a minor surgery next month and will need 6 weeks to recover post op. Other times, the situation is less clear. For example, when an employee is constantly calling out sick and you are aware that they suffer from an underlying health condition such as chronic migraines or asthma. In either case, employers have an obligation to interact, find out what the employee needs, and for how long.
Employees have an obligation to interact as well. Except in rare cases totally outside of an employee’s control, employees must provide employers with as much notice of their need for leave as possible, as well as provide any requested medical certifications within a timely manner. If the employee is FMLA eligible, medical certification is required within 15 days of receipt. When FMLA is not a consideration, but the ADA applies, medical certification should generally be required when the requested accommodation includes leave or a modification of work schedule or duties.
Make a plan
Once all necessary information is gathered, it’s time to make a plan and let the employee know what they are approved for. Under the FMLA, this tends to be straightforward and the company will generally approve the amount of leave certified by the health care provider as long as it is within the 12 weeks/480 hours allotment. Leave under the ADA should be approved if the request is reasonable and does not pose an undue hardship on the company. Wherever possible, companies should strive to grant requests and find ways to temporarily cover job duties until the employee is able to return.
Take care when making employment decisions
Where medical issues and disabilities are involved, it is important to take care when making employment decisions that might impact an employee in a negative way. Even though most states are considered “at will”, employers must never make adverse employment decisions based on an employee’s protected class, including disability. While it’s never ideal, there are some instances where it may be necessary to terminate an employee while on FMLA or ADA leave. For example, if the employee’s position is eliminated or the company must do a round of layoffs, termination may be the only reasonable option. In this case, companies should take great care to define their selection criteria and document how and why the employment decision was made. In no case should an employee’s FMLA status or disability be a consideration. Should a situation like this arise, we would recommend consulting with an attorney who specializes in employment law prior to making a permanent employment decision.
For clients of Helpside there is no need to go it alone. Our HR team handles hundreds of leave cases every year and is well equipped to help you comply with applicable federal and state leave requirements. We are also available to help you develop leave related policy, send out the required FMLA notices, and assist with the interactive process. You can reach us at email@example.com.