For months, Frank had been the epitome of a problematic employee; attendance issues, sub-par performance, and behavioral issues that have resulted in frustrated coworkers. Frank’s supervisor administered a record of discussion, addressing all three of these concerns with the hopes of rehabilitation and significant changes. Shortly after the disciplinary action, Frank underwent shoulder surgery and took a job-protected leave of absence for 8 weeks, returning to work with a reasonable accommodation as his recovery warranted short-term disability.
Upon his return, the areas addressed in his record of discussion began again and a written warning was quickly delivered. Frank’s supervisor mentioned in his written warning “after returning from an FMLA leave of absence, Frank has been absent on 4 occasions in a 2-week period.” Shortly after this second disciplinary document was administered, Frank got into a verbal altercation with a co-worker in front of customers who filed a complaint with management and Frank was promptly terminated for the incident. A few weeks later, the company received notice from the state that Frank had filed a wrongful termination suit, claiming that he was being discriminated against because of his job-protected leave of absence and subsequent disability.
A common situation that arises with employees who are out on a medical leave of absence, or who are protected under ADA due to a disability, is the issue of disciplinary action. How can you effectively apply performance or conduct standards to your employees, while not violating ADA regulations?
An employee with a disability is still required to meet the same production and performance standards as a non-disabled employee in the same position, and an employer may hold the employee to the same performance and conduct standards as they do to all other employees. In most situations, the employee’s disability will not be a relevant factor in reviewing conduct or performance violations. The ADA does not protect employees from the consequences of violating conduct rules, even when such conduct is caused by the disability.
What you have to make certain of however, is whenever administering disciplinary action, you make it very clear that the discipline and the disability or leave of absence are entirely unrelated. Frank’s supervisor made the mistake of mentioning his leave in his write up, which opened a can of worms with regards to the perception of discrimination.
Navigating the world of leave and disability management can be a headache with so many laws and regulations to adhere to and form your policies around. HRCentral specializes in alleviating this stress from organizations, allowing you to focus your resources on your employees and customers. Contact us today to discuss how we can help you implement a program that is streamlined, compliant, and beneficial for both your company and your employees.
This month we have been discussing the ADA and leaves of absences, how to identify the need for either of these protections, and understand what protections apply to your organization and your employees. We know that in situations in which an employee sustains and injury or illness that a job-protected leave of absence or period of disability may apply. A common question is how do you know which applies? Do they overlap? Do they run concurrently? Does the employee get one or the other?
For many employers who do not meet the eligibility requirements for state or federal job-protected leaves (primarily falling under 50 employees), the ADA and disabilities are going to be the predominant reason for a personal, medical leave of absence. As this is the case, it is important for you to be familiar with ADA/disability regulations, understand how they apply to you, know what you can and cannot ask, and be confident with handling situations in which a disability is present.
What qualifies an individual? Title I of the Americans with Disabilities Act (ADA) covers “qualified employees with disabilities.” A qualified individual can be further defined as: an individual who satisfies the skills, experience, education, and other job-related requirements of the position sought or held, and can perform the primary job tasks of the position, with or without reasonable accommodation.
The term “disability” can be further defined as: a physical or mental impairment that substantially limits one or more major life activities; a record of a physical or mental impairment that substantially limits one or more major life activities; or having a physical or mental impairment that substantially limits one or more major life activities.
A common scenario in which the ADA and a job-protected leave of absence may overlap is in situation in which an employee has exhausted their 12 weeks of job-protected leave but requires additional time off (or a reasonable accommodation upon their return to work). If an employee’s condition constitutes a disability, the law may require additional time off or reasonable accommodations provided to the employee after the expiration of their leave.
Navigating the many areas of state and federal leaves of absence and the ADA can be tricky. HRCentral can provide you with the expertise and guidance your organization needs to ensure compliance with all areas of leave administration, saving your company valuable time and resources. Contact us today!
Looking back on the situation regarding Diane and her illness which caused attendance issues, we know now that when Diane disclosed to her supervisor that her problems with attendance were due to a mental health illness and the medication she was taking, the appropriate process wasn’t necessarily followed with regards to seeing if Diane qualified or required a reasonable accommodation or a leave of absence. Granted, it was Diane’s responsibility to request a reasonable accommodation, but when a supervisor is made aware of a situation, the right questions need to be asked.
How do you know what applies and what questions to ask? In situations that warrant a serious health condition (whether that be physical or mental) or a disability, there are typically three types of protections that may apply to the employee:
- Federal (the Family and Medical Leave Act) – The FMLA typically applies to organizations with 50 or more employees working within a 75-mile radius and warrants job protection for up to 12 weeks;
- State (in Oregon we have the Oregon Family Leave Act) – At the state level, leaves of absence typically run concurrently with the FMLA, but the eligibility requirements may differ (for example, in Oregon organizations with over 25 employees are required to comply); and
- Disability Protection (the Americans with Disabilities Act, the ADA) – Prohibits discrimination against individuals with disabilities, ensuring that they have the same rights and opportunities as everyone else (such as providing them with a reasonable accommodation to enable them to perform the essential functions of their job).
Managing employees often means managing your department while they are out and ensuring the employee’s time off is protected or calculated correctly. It is important that managers and supervisors understand which leave protections apply to their organization, how they work, and what both the employer’s and employee’s rights and responsibilities are before, during, and after a leave of absence or period of disability.
This is where we step in! Leave Administration is something that HRCentral specializes in. We understand that your time and resources are valuable to your organization, which is why we work with your HR department and your management team to take as much of this process off your plate as we can. In addition to administering this process for you, we offer Leave Administration management training, educating your supervisors in the different types of leaves, who is responsible for what, and how to identify the need for a leave of absence or a reasonable accommodation.
Contact us today to see how we can work together to make this process as seamless for your Company as possible!
With regards to job-protected leaves of absence (with either state and/or federal protections) and the Americans with Disabilities Act (the ADA), knowing how to spot potential ADA issues is critical. Under the ADA, employees are responsible for requesting a reasonable accommodation (a modification or adjustment to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position), and employers are only required to make reasonable accommodations for employees with known mental or physical impairments. This means that the employee doesn’t have to use those two magic words and directly say that they need a “reasonable accommodation,” but they are responsible for disclosing that they have a disability that has created limitations affecting their work and that an accommodation is required in order for them to perform the essential functions of their job.
Equally as important as knowing how to pinpoint these indications of a need for a leave or reasonable accommodation is having a policy in place that outlines what you as a manager are expected to do when such a situation arises. Your Employee Handbook or Personnel Policies and Procedures Manual should have a detailed policy indicating what the employee’s responsibilities are, what protections are available to employees, who to contact, and what the process is and what the procedures are for requesting an accommodation or leave of absence (such as the request to be submitted in writing, a list of the duties the employee needs an accommodation for, and what the accommodation(s) requested are).
Management training on leave administration can be invaluable for organizations that warrant such a process. Having a policy in place, while important, can only take your managers so far. Training on leave administration can help supervisors know how to spot the need for a leave or an accommodation, how to properly communicate with the employee, when to forward the situation to human resources, ongoing management of the situation, and how to effectively manage any disciplinary action to ensure situations involving perceived discrimination and retaliation don’t occur.
HRCentral specializes in creating customized policies and procedures and conducting management training that is tailored to your organization’s unique culture. Contact us today to see if your company could benefit from leave administration training, educating your management staff on the different types of job-protected and disability-related leaves and everything that those cases entail.
After missing 5 days of work over the course of 3 weeks, Diane’s supervisor, Kristin, approached her as these excessive absences were starting to affect productivity. Diane disclosed to Kristin that she recently started a new round of medication for her depression and her body was having a hard time adjusting, but she would try to call in sick less often. Over the next month, Diane’s attendance did not improve, and she continued to call in sick and leave work early. Kristin wrote her up for attendance-related reasons and Diane promptly filed a grievance to human resources, claiming that she felt she was being discriminated against based on the mental health condition she told her supervisor about.
How could Kristin have handled this situation differently? Should she have gone to human resources immediately to let them proceed in handling Diane’s disability? Should she have worked out a temporary schedule for Diane? Or, did she manage the situation adequately and was Diane off base in filing her grievance?
The importance of training managers is something that we have discussed in various capacities over the years. Your front-line managers play a huge part in the success of your organization as they are the ones responsible for ensuring that your employees’ performance meets company standards, projects are completed in a timely and efficient manner, and that your customer’s needs are met and they leave satisfied.
In addition to ensuring your managers are productive, engaged, and loyal, one of the top reasons to provide adequate training to your supervisors is to avoid potential litigation. Employee lawsuits can be draining on your organization’s time, energy, resources, and funds. Training your managers to handle certain situations in ways that alleviate risk and are compliant with federal and state employment and labor law is an effective first step in preventing investigations and lawsuits.
In the case of Diane and Kristin, Kristin should have immediately gone to HR and informed them of the mental health condition that Diane told her about. HR would have then met with Diane to discuss her need for a reasonable accommodation through the ADA (American’s with Disabilities Act) or to see if she is eligible for a job-protected leave of absence (either at the state level or the federal level through the Family Medical Leave Act [FMLA]).
The grievance and lost resources as a result could have been completely avoided if Kristin had been trained on what to do in a situation such as this. It is not the job of managers to handle leaves of absence or ADA issues, but it is their responsibility to ask the right questions. Training them to know what questions to ask, when to ask them, and when to reach out to their HR department or to HRCentral is a huge first step in avoiding potential lawsuits and the general disgruntlement of your employees.
Follow along this month as we continue to discuss the importance of job-protected leaves and ADA training, what to do in certain scenarios, and how HRCentral can help you navigate your way through this oftentimes overwhelming area of employee management.