One of the most challenging areas of employment law is sick, injured or absent employees, according to Neil Dishman, principal at Jackson Lewis in the law firm’s Chicago office.
Speaking at a recent NationaLease meeting, Dishman said there is an “alphabet soup” of employment regulations of which fleets need to be aware. He called them the Bermuda Pentagon and they include:
- FMLA — Family Medical Leave Act of 1993
- ADA — American with Disabilities Act
- Worker’s Compensation
- GINA — Genetic Information Nondiscrimination Act
- Paid-sick leave, at state and local levels
As Dishman explains it, these are “highly technical, counterintuitive and overlapping regulations.”
There are paid leave laws; unpaid leave laws (FMLA); accommodations laws (ADA); which can include unpaid leave; and compensation laws. “All four prohibit discrimination and retaliation,” he said. He added that businesses must comply with all four of them separately but often at the same time.
Dishman spent much of his time talking about FMLA, which is an entitlement law. Entitlements include: 12 weeks of leave within a 12-month period for a qualifying reason; job protection and heath insurance during the leave.
The leave can be scheduled in a block, can manifest as a reduced schedule or can be intermittent. To be eligible for FMLA, the employee has to have been employed for 12 months, worked 1,250 hours during the 12 months prior to the leave and the business has to employ 50 people within a 75-mile radius.
Employees are entitled to FMLA for the following reasons:
- Birth/adoption/foster care
- Serious health condition of employee or covered family member
- Military family leave for any qualifying exigency or to care for an injured service member
Dishman shared the five critical transactions in the FMLA process:
- Notifying employees of eligibility and rights and obligations
- Medical and other certifications confirming entitlement to the leave
- Designating leave as FMLA-qualifying
- Medical recertification
- Return to work
Under FMLA, an employee must explain to their employer the reason for the leave they can’t just call in sick. For intermittent FMLA leave, employees must specifically reference the qualifying reason for needing the leave.
Employers need to send the employee the Department of Labor’s WH-381 eligibility/rights and responsibilities form detailing specific expectations and obligations of employees and explaining consequences of failing to meet those obligations.
One of the sticking points with FMLA can be problems with the medical certifications. Employers should never accept incomplete or insufficient certifications and should state in writing what information is still needed to complete the certification. Employees have seven days to fix deficiencies.
The next area of concern is fitness-for-duty certifications at the end of the leave. Employers have the right to demand more than a simple statement of the person’s ability to return to work. The certification must focus only on the FMLA qualifying condition and not the person’s overall physical health.
Intermittent leave can be a big headache for employers. Dishman’s advice is to give close scrutiny to the initial certification and deficiency letters, make the employee recertify as often as allowed, insist on a reasonable effort to schedule the leave around job responsibilities, transfer the employee to a position where the absences will be less disruptive and challenge “changed circumstances” such as Friday/Monday off patterns.
In order to successfully navigate employment law, Dishman says that supervisors and managers need to be trained. “The most common mistake is failing to document employee performance issues before any leave or workplace injury,” he said.
Remind supervisors and managers to document all performance issues and show them the proper way to do so.
To conclude his presentation, Dishman shared some workplace trends that he says are sweeping the nation:
- Mandatory harassment training
- Prohibiting confidentiality of harassment settlements
- Prohibiting or limiting arbitration agreements
- Prohibiting salary inquiries of applicants
- Implications of medical and recreational marijuana laws that have been passed in some states
- $15 minimum wage
- Predictive scheduling