Thanks to those who attended my webinar last week on FMLA and ADA Overlap Issues. If you missed the program, you can access the webinar here. Our PowerPoint from the webinar can be downloaded here (pdf).
In a mere hour plus, Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management Corporation) Matt Morris (Vice President at ComPsych) and I covered a number of FMLA and ADA overlap conundrums, such as:
- Handling an employee’s request not to work overtime or more than eight hours in a day
- Managing an employee’s sporadic, yet frequent absences after the employee exhausts FMLA leave
- Responding to an employee’s request for a new supervisor due to stress caused by the workplace
- How many extensions of leave is an employer legally obligated to provide after an employee exhausts FMLA leave
And we sang a Thanksgiving jingle. Which, of course, was god-awful. Thankfully, this can be skipped over in the recording.
During the webinar, some common themes emerged:
- When a triggering event occurs (e.g., a request for leave), the interactive process is paramount. The employee’s request must always be taken seriously, and it is critical that the employer engage the employee to determine whether any accommodations exist that would enable the employee to perform the essential functions of his job. We outlined what this engagement should look like.
- The determination regarding whether a requested leave must be granted as a reasonable accommodation requires a fact-intensive inquiry. We provided attendees a very specific approach to handling requests for leave as a reasonable accommodation, focusing on: 1) how an employer should deal with vague and/or non-responsive information from the employee and the health care provider; and 2) how an employer can identify the undue hardship on the employer’s operations as a result of the employee’s continued absence. To borrow a phrase from Sara during the webinar, “leave is not a destination . . . it’s a tool to help the employee get back to work.” Well said.
- An employer absolutely can insist on an employee’s regular and reliable attendance. However, where the FMLA and ADA are implicated, how you communicate and document your attendance expectations sets the foundation for taking appropriate and lawful personnel actions at a later time. The path is full of potholes, however, so we recommended an approach to maneuver around those landmines.
- Beware of automatic termination policies & examine “no fault” attendance policies. Although these policies are not per se illegal, we discussed how to practically and lawfully implement them in your workplace.
- When it comes to leave and reasonable accommodations, don’t assume a leave of absence is the only option. We highlighted considerations for alternative accommodations, including reassignment.
Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed. Feel free to post a comment here or email me at firstname.lastname@example.org.