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The Retail Employer

 October 2006

Dealing with Medical Absences in the Bermuda Triangle

An overview of the overlap: the ADA, the FMLA, and workers’ compensation laws

by David E. Nagle

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. The statute protects qualified individuals with disabilities. A person with a disability is one who has a physical or mental impairment that substantially limits one or more major life activities, a record of having an impairment, OR who is regarded as having disability. A qualified individual with a disability is one who can perform the essential functions of the job with (or without, if not needed) reasonable accommodation.

An employer is required to refrain from discrimination, which includes providing reasonable accommodation to a qualified individual with a disability, so long as it does not constitute an undue hardship. Whether an act is a reasonable accommodation is a fact-based inquiry and depends, in part, upon the size of the employer and the cost of accommodation. The duty to provide accommodation applies only to known disabilities and may include such actions as acquiring new equipment, modifying existing equipment, job restructuring, changing work schedules, or reassignment to a vacant position.

There are times that granting time off from work may be required as a reasonable accommodation. However, the fact that the employee is disabled and may be unable to work does not mean that the employer always will have an obligation to provide the time off. This is especially true when the extent of absences make the worker unqualified for the job. Supervisor and employer must analyze the reason for the absence.

The Family and Medical Leave Act (FMLA) allows eligible employees of covered employers to take up to 12 weeks of job-protected unpaid leave (which may, in certain circumstances, be taken on an intermittent basis) for a serious health condition which makes the employee unable to perform the functions of his or her job, or to care for an employee’s newborn child, to care for a child who has been placed with the employee by adoption or foster care, or to care for a spouse, child or parent with a serious health condition. An “eligible employee” is one who has been employed by the employer for at least 12 months and has worked 1,250+ hours in the preceding 12 months.

A “serious health condition” under the FMLA includes “illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider”, or a period of incapacity (inability to perform regular daily activities) of more than 3 consecutive calendar days because of the serious health condition.

The five basic categories of serious health conditions are: an illness or incident requiring inpatient care; pregnancy; more than three days of incapacitation, plus treatment; chronic health conditions; and treatment to prevent incapacitation or for restorative surgery

An employer is obliged to provide up to 12 weeks of unpaid leave, and reinstatement. Generally, paid leave may be substituted where available. In certain circumstances, leave may be taken on an intermittent or reduced-schedule basis. Employers must provide notice of FMLA entitlements and employee obligations under FMLA, and must maintain the existing level of coverage under any group health plan. An employer must reinstate employee returning from FMLA leave into the same or equivalent position, and employers cannot retaliate, or use the taking of FMLA leave as a negative factor in employment actions.

The FMLA does not require reinstatement of an employee who is unable to perform the essential functions of his or her job. The FMLA does not require accommodation. Employees on FMLA leave, and reinstated employees, have no greater rights than had they been working throughout the period of leave, with respect to conditions of employment such as layoffs, shift changes.

As to medical certification to support FMLA leave, an employer may require medical certification for leave based on the care of an employee’s seriously ill spouse, child or parent, or the employee’s own serious health condition which prohibits the employee from performing the essential functions of his or her job. The medical certification should be provided before foreseeable leave begins, but an employer must allow employee at least 15 days to provide medical certification after request. It is prudent for an employer to request certification within 3 days after medical absence commences. Employer may require employee to obtain a second opinion (at the employer’s expense) if the employer has reasonable doubt as to the validity of the medical certification. An employer may require an employee who took leave because of his or her own serious health condition to provide certification that the employee is able to return to work, so long as the requirement is applied uniformly to similarly-situated employees.

State Workers’ Compensation laws covers injuries or death caused by accidents arising out of and in the course of employment, and injuries or death caused by occupational diseases arising out of and in the course of employment. An accident must be an identifiable incident that occurs at some reasonably definite time. An accident includes any mishap, event, or injury-causing incident at work, including accidents caused by the employee’s own negligence or that of a co-worker. The Workers’ Compensation Act provides benefits, in the form of compensation for temporary total and partial incapacity and compensation for permanent total and partial incapacity. Workers’ comp also covers medical expenses as long as necessary after an accident.

Employers need to adopt a strategy for managing leaves, and avoiding fraud and abuse. A critical component is supervisory responsibility for recognition of interplay of statutes, and policies, so as to provide management with adequate notice of the types of leave at issue.

When an employee notifies you that he or she needs to take time off, you always should inquire as to the specific reason for the time off in order to determine whether the absence qualifies as FMLA leave. Ask if the absence is for an FMLA-qualifying reason, because the employer has a duty to certify the leave as FMLA leave at the time the leave begins (within three days). Only in this way can the Company begin immediately to deduct the absence from an eligible employee’s 12-week entitlement. Managing FMLA leave requires recognition that FMLA leave can be intermittent or on a reduced schedule. An employer should require adequate notice of FMLA leave and require appropriate medical certification. It also requires that the employer determine whether there is other paid leave which can be used concurrently, such as vacation or sick leave.

An employer also needs to be attentive, when the issue of a medical absence arises, to determine whether there is a disability under ADA. Not all medical conditions requiring an absence from work qualify as disabilities. Many medical conditions that require absence from work are not disabilities, and thus the ADA does not come into play. For example, pregnancy, or a broken ankle, will require absence from work due to a medical condition which is not a disability, and thus these medical conditions do not impose a duty to accommodate under ADA. When a disability exists, and time off is requested as an accommodation, management needs to evaluate whether granting the time off will constitute an undue hardship, relieving employer of the duty to accommodate.

Finally, an employer needs to take into consideration whether there is a workers’ compensation injury at issue, recognizing that workers’ compensation laws provides protection from wage loss and medical expenses, and generally are not providing job protection (although a retaliatory discharge would be unlawful).

Management needs to be clear on whether absence from work is protected by workers’ comp law, contract, or another statute. Do not make assumptions, and do recognize that more than one of these—the FMLA, the ADA and workers’ compensation—may apply simultaneously. Alert Human Resources when the issue of a medical absence first arises, and get them involved whenever there is a need for any medical inquiry or request for medical certification. Get your human resources professionals, and your employment counsel if necessary, involved in order to identify applicable laws and provide guidance on the interplay between any time off required by statute (under the ADA, the FMLA, and workers’ comp laws) and any time off that may be available pursuant to company policy or under a contract. Have clear standards and policies in place for issues such as counting days of absence, and the absence necessary to establish job abandonment. Have clear policies regarding benefits during leaves, compensation (e.g., bonuses) earned during leaves, and reinstatement following leave. Make sure appropriate action is taken in response to abuse of employer’s policies and, most importantly, make certain that your policies are articulated, are available, and are consistently enforced.

Question: You have 100 employees. This morning, both John and Mary are waiting to see you. John has worked for you for two years; he fell at work and hit his head. He was out of work for 30 days due to the injury, and now has been released to return to work, but has migraine headaches as a result of his fall. Mary has worked for you for eight months, and is pregnant. Both John and Mary have exhausted all of their sick leave and vacation. Now, each of them has brought a note from a doctor stating that they should be given light duty and relieved of work two hours a day. Are either, or both, protected under the Americans with Disabilities Act? Are either, or both, protected under the Family and Medical Leave Act? Are either, or both, protected under state workers compensation laws? If so, what protection is available?

Answer: All three laws apply to one or the other. None apply to both, If you don’t know which is which, and are unsure which of these employees can be discharged, you better be ready to find out fast.

David E. Nagle frequently conducts seminars for members of the Retail Merchants Association, and has been retained by the Association to assist retail members through the Labor Law Information Program. David has advised and represented employers with respect to legal issues in the workplace for 25 years. Recently David joined Jackson Lewis, and opened the firm’s Richmond office. Jackson Lewis has 400 attorneys in 27 cities across the country, representing management exclusively in workplace law and related litigation. He may be reached at (804) 648-4077, or by email at nagled@jacksonlewis.com

Calls requesting information on the Labor Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500.

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Motivate Employees and Live in the Learning Zone

Learning leadership principles helps managers at any level of experience lead their teams more effectively. But according to David Cottrell in his book Monday Morning Leadership, one lesson that is difficult for many managers is learning their place on the team. You might think managers are the vital component to their teams, but it is actually the other way around. A manager’s performance depends on the people he or she leads. Team members do 95% of the work, while managers are responsible for helping them become better at their jobs.

That’s why motivating employees is a critical skill for any manager. Cottrell describes the ebb and flow of motivation through the analogy of buckets and dippers. Motivation is like a bucket – it can be overflowing or full of holes. Sometimes, other people will remove motivation from others’ buckets using the dippers of stress, fear, negativity and anxiety. Four tips can help you make sure your team members have full buckets and are motivated to do their best work.

  • Communicate the main thing. A great leader tells team members what the main priorities of the team are. Identify your goals and priorities and regularly talk with your team about them.
  • Give feedback. Beyond a performance review, continuously fill your team members’ buckets through regular feedback. Great feedback is sincere, specific, timely and valuable to the receiver. Neglecting feedback drains your team members’ buckets.
  • Demonstrate that you care. Make sure your team members know that you care about their personal needs as well as the work they do. Showing you care is a great way to recognize a job well done.
  • Give goals updates. Urge your team members on by encouraging them and letting them know how they are doing. Give a weekly report on the team’s progress toward company and department goals. This will let your team members know how they can make yours a winning team.

Leaders who fill their team members’ buckets and motivate them find that their own buckets are filled as well. With that motivation, great leaders choose to do more than simply live the same day over and over. Instead, they leave their comfort zone and journey to a place of lifelong learning, where each day offers a new lesson. You can start your voyage out of the comfort zone of mediocrity today by following these tips.

  • Reading – Everyone can find a few minutes each day to devote to reading. Cottrell points out that reading merely 10 minutes a day will enable you to read 10-12 books throughout the course of a year. That knowledge adds up, improving your leadership and making you the next candidate ready for a promotion.
  • Listening – This crucial skill for leaders combats the insensitivity, arrogance and indifference that many leaders develop over time. Listening keeps you in tune with the daily needs of the team. Training your ears to truly listen will take you far in your career.
  • Giving – No one can succeed without giving back. Teaching, mentoring and coaching your team sets you up to practice what you preach. When your team knows what you are learning, they hold you accountable to implementing that knowledge.
  • Setting Goals – True leaders set themselves up for success by setting goals. However, many people do not set specific goals or write them down, often because they are afraid that setting specific goals will result in measurable failure. But leading without goals is like going on a journey without a map. You can’t be a true leader without a vision of where you are going. Setting specific, measurable and attainable goals gives you that vision.
  • Staying Positive – Since leaders know where the team is headed, the journey itself should be seen as a success. Great leaders stay positive on the journey, no matter what obstacles they face, because they know their team and their organization will be better off in the end.

Continually learning means you will constantly be challenged and motivated to be better at managing your employees. The best leaders are always becoming better at what they do. You can become more than simply a manager by investing time in leading your team by implementing these tips today. With the goal of continuous improvement, your leadership style will grow as you lead your team to repeated success.

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Mr. Lars Nordin at Lars.Nordin@ExpressPersonnel.com if you would like to be added to their distribution list.

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How Well Do You Train New Employees?

Have you ever thought about how employees learn the skills to do their job? Here is a rule that everyone who trains should pass along.

Do it right the first time.

Training demonstrates your concern for employees. They are worth the investment.

Proper training will make them productive quicker.

Here are some basics to training:

  • Plan your employee training in advance.
  • A trainer must be available with adequate time and ability to do the job.
  • Develop and use training checklists to insure all details are covered.
  • Make it fun if and when you can.
  • Test your employee’s knowledge; use a quiz or just ask them questions.
  • Use role plays so that the employee is confident in the job.

Good, Better, Best:

  • Telling the employees is good; reading about it reinforces your message.
  • Showing them is even better so they see it done right.
  • Employees learn best when they do the task correctly with a trainer.

Train easy repetitive tasks early so employees can be productive and feel they can contribute to the team effort.

Remember practice does not make perfect; perfect practice makes perfect; in other words if they are not doing it correctly they are learning an incorrect method and wasting their time, your time and your money.

Proper training is a big investment but done right it pays back large dividends!

This article is reprinted with permission of Mike Dunleavey, mikedunleavey@iib.ws, Executive Associate - Business Support Center - Retail Merchants Association.

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Secrets to Selecting and Retaining Exceptional Employees

The Virginia Petroleum, Convenience and Grocery Association (VPCGA) is sponsoring a seminar in mid-November titled Secrets to Selecting and Retaining Exceptional Employees. Click here for more information.<< Back to top