RISKVUE ARCHIVE | RISK BITES

Did You “Leave” Your House in Order?

By Lisa A. Kainec

Managing employee leaves of absence has become one of the biggest challenges for every organization, whether you are a small family-run business or a huge international firm. Regardless of your industry, product or service, if you have not landed in the quicksand of managing employee absences from work due to work-related or other injury or illness, you are well served to get your house in order before your feet sink in.

Are you an employer with 50 or more employees in a 75-mile radius? If so, you are covered by the Family and Medical Leave Act of 1993. Surprisingly, there are a significant number of employers who have not yet adopted a formal FMLA leave policy. The FMLA is unique in that it is the only federal or state law that requires that covered employers who otherwise disseminate written policies or procedures to employees adopt a written FMLA leave policy.

Perhaps you’ve adopted your FMLA leave policy, but did so back in the early 90’s. Have you audited your leave procedures and written policy to keep them up to date and consistent? Have you critically reviewed your past practices to improve your leave administration? What about the overlap between workers’ compensation leave, FMLA leave and possible coverage of the Americans With Disabilities Act? Do you know how to handle continued medical benefits for each type of leave? Welcome to the quicksand—it happens just that fast.

If you have an employee who has long-term restrictions from a workers’ compensation injury or otherwise is restricted in their ability to return to work, you will be required to analyze the situation under FMLA, ADA, state law restrictions on your ability to terminate an employee who is receiving temporary total disability benefits, workers’ compensation retaliation, and the broad protections created under the “public policy exception” to employment at will in Ohio. If the employee also is covered by a collective bargaining agreement, you also must consider your ability to make any required disability accommodations within the parameters of that agreement.

Affirmatively managing employee leaves requires proactive advance planning in order to avoid the less favorable position of reacting to a problem. Careful consideration should be given to training your managers and supervisors who will handle employee report-offs, since they are your front-line defense to claims of wrongfully denied FMLA leave. Also knowing how and when to use independent medical examinations under both the FMLA and ADA will bolster your decision making and increase your ability to defend frivolous claims.

It is practically inevitable that every employer will experience at least one of these challenging situations, if it has not already occurred. Knowing how easy it is for any employee or applicant to challenge any employment decision, wise employers prepare for the storm. If your manager or supervisor is questioned in deposition about their knowledge and training in this area, how prepared will they be?

ABOUT THE AUTHOR

Lisa A. Kainec, Esq., is a shareholder with the Akron, Ohio, law firm of Kastner Westman & Wilkins, LLC (www.kwwlaborlaw.com). Ms. Kainec handles all aspects of employment litigation on behalf of employers in both state and federal courts, and counsels employers on a wide array of employment law issues, particularly ADA and FMLA compliance. She can be reached at 330-867-9998 or lkainec@kwwlaborlaw.com.

This article originally appeared in the Summer 2005 issue of kwwlaborlaw.communicator, a publication of Kastner Westman & Wilkins, LLC.

riskVue | The webzine for risk management professionals
March 2006