Navigating the Bermuda Triangle of Employee Leave

January 28, 2015

For many employers, dealing with employee absenteeism is the legal equivalent of navigating the Bermuda Triangle. That is because when an employee is unable or unwilling to work due to a physical or mental condition, his employer must address and comply with three major employment laws – the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and workers' compensation laws – each of which serve a different purpose.

The FMLA sets mandatory leave requirements and protections. The ADA addresses and prohibits discrimination and may require reasonable accommodations, which may include unpaid leave. And workers’ compensation provides compensation and rehabilitation for injuries suffered in the workplace. When an employee situation implicates more than one, or even all three, of these complex laws even experienced business people and human resource professionals can feel lost.

Consider a common example: an employee is out for an extended period – well beyond her permitted sick or personal leave – and her employer isn’t sure how to address the situation. The “Bermuda Triangle” poses many traps for an unwary employer in even seemingly simple and straightforward scenarios. Some employers confronting this situation would act swiftly and decisively to either fire or discipline the employee, without considering leave implications. Others may hesitate to take any action at all due to fear and uncertainty about the parties’ respective rights. Each action, or inaction, has consequences – none of them good.

Taking action that violates these employment laws can expose a company, as well as managers who took the action, to significant liability. Taking no action at all sets bad precedent and impacts culture and morale in the workplace.

So what should an employer do in the face of an employee’s extended absence? Unfortunately there is no secret recipe. Navigating the interplay of these laws requires careful analysis and consideration, as definitions, notice requirements, triggers and documentation requirements differ under each. A good place to start to head off issues before they arise is to develop sound policies and training initiatives for managers and HR professionals.

Supervisory employees should have an understanding of who is covered by each law, what each law requires, and how these laws apply to a particular situation. At a minimum, they should be able to identify red flags that require HR and legal counsel in order to evaluate and resolve.

Contributed by Brian Goodenough, Foster Swift.