INFLEXIBLE LEAVE OF ABSENCE POLICIES MAY LEAVE EMPLOYERS VULNERABLE
I’ve said it before, and I’ll say it again: Employment laws are fluid! In the ever-changing landscape of today’s workplace, it is critical that employers keep their policies current and lawful. This includes Leave of Absence policies. Remember when it was okay to prohibit employees from discussing their wages? Or when you could prohibit an employee in Texas from keeping a gun in his car on company premises? If you’re up with the times, you know that these are no-no’s in today’s employment world.
Leave of Absence policies are another one of those areas that can trip up unsuspecting employers who are not up with current regulations. Time was . . . if your policy stated a maximum amount of leave (say, 3, 6 or 9 months), you could automatically terminate an employee whose leave extended beyond that period. But for employers with at least 15 employees, those days are over if the leave involves a medical condition that might be covered by the Americans With Disabilities Act (ADA).
The ADA specifies that employers must provide reasonable accommodation to qualified individuals with disabilities. Courts and the Equal Employment Opportunity Commission have determined that extension of a leave of absence beyond what is stated in the policy, may be an appropriate form of reasonable accommodation. Same goes for policies that limit the availability of leaves of absence to employees who have completed their probationary period (or another specified period of time).
Reasonable accommodation should be considered on a case by case basis. So if you’re covered by the ADA, assess the situation before you automatically terminate someone who has reached the maximum allowable leave or before you deny a medical leave to someone who hasn’t worked the requisite amount of time. You don’t want to end up with an EEOC disability charge on your hands.
To make sure your Leave of Absence policies and all your other employment policies are up to date, I recommend you have these policies reviewed annually by a qualified and experienced HR consultant.