As an employer, managing employees' personal needs is never an easy task. Workers may often be dealing with a sick child or relative, or may be faced with a personal situation that would require them to be absent from work for an extended period of time. While the knee-jerk reaction may be to terminate an employee who is absent more than they should be, employers need to first consider flexible leave time as an alternative to dismissal.

In order to avoid potential legal pitfalls, employers need to consider the following:

Review your leave policies

Business owners and HR professionals should dedicate some time to review their leave policies with their legal team and make sure they are compliant with all applicable laws including the ADA. Your company's policy should NOT:

  • Prohibit leaves of absences;
  • Limit the amount of leave an employee can take before being terminated/disinclined;
  • Provide for only a specific amount of additional leave time eligible to be taken regardless of the basis for the leave.

If your current policies contain such language, they should be updated immediately to bring them into compliance with the law. As always, anytime your company alters or updates its policies, you should inform your employees and have them immediately sign off that they have been advised of the new or updated policies.

Interaction between the FMLA and ADA

Employers subject to the Family and Medical Leave Act (FMLA) may be required to provide employees with specific amounts of job-protected leave due to certain qualifying conditions. These conditions may include care for the employees own serious health condition, the serious health condition of a family member, the birth/placement of a child and certain military exigencies.

However, the inquiry is not necessarily ended when employees exhaust the leave to which they are eligible under the FMLA or the employers own separate leave policies. The ADA may require that the employer provide additional leave as a reasonable accommodation for an employee's medical condition or disability. Similarly, requiring an employee to be 100% medically cleared before returning to work is also a potential ADA violation. In addition to providing additional leave, employers may want to consider light or modified duty, as a reasonable accommodation.

The Interactive Process

The ADA requires that employers provide reasonable accommodations to qualified individuals with disabilities. In order to satisfy this requirement the employer must engage the employee in an interactive process to determine what the precise limitations are on the employee and whether a reasonable accommodation is available that would enable them to continue to perform the essential functions of his/her position. This process should always be well documented and thoroughly engage the employee. It is important to remember that the employee is not required to specifically request accommodations under the ADA. Rather, it is the employer's obligation to engage in the interactive process whenever an employee or his/her representative (e.g., a physician) indicates to the employer that he/she needs an adjustment or change at work because of an impairment, medical impairment, medical condition or similar reason.

Companies and their HR professionals should ensure that they have a solid understanding of the ADA and managing employee leaves.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.