One of the more challenging compliance issues for employers is managing family and medical leave and other leaves of absence, and knowing when to safely terminate employment. Kimberly Korando with Smith Anderson law firm guided CAI members who participated in the recent members-only “Ask the Experts” sessions on the interplay of company leave policies, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act of 1990 (ADA), the ADA Amendments Act of 2008 (ADAA), and North Carolina’s Retaliatory Employment Discrimination Act (REDA).
Following are some of the practical takeaways from this session:
1. REDA and ADAA have different requirements.
North Carolina’s REDA law allows employers to have a consistent termination policy that applies across the board regarding workers’ compensation leave. The ADAA requires a case-by-case evaluation when an employee needs extended leave to determine if a reasonable accommodation can be made (consistency is not applicable).
2. Review policy language on FMLA eligibility.
Be sure that your employee-eligibility statement for FMLA includes all of these requirements: employed for at least 12 months; worked 1,250 hours over the previous 12 months; and works at a worksite with at least 50 employees within 75 miles. According to Ms. Korando, if the policy leaves out any of the criteria, you may be required by the courts to grant FMLA even if the employee is not eligible.
3. Consider the different requirements of FMLA and ADA on return to work.
FMLA requires an employer to return the employee to the same or an equivalent position. ADA requires the employee’s return to the original position. This is extremely important to remember when the employee is covered by both the FMLA and ADA, and the employee returns before the end of the FMLA (unless he or she is unable to perform the original position with or without reasonable accommodation).
4. Document the interactive process.
Court cases provide employers with tips on the court’s expectations of how they should handle the ADA process. One “nugget” Ms. Korando gleaned was that the courts expect employers to document the interactive process and what was considered and discussed with the employee regarding reasonable accommodation and/or undue hardship.
5. Check third party vendor letters.
If you have agreements with vendors that stipulate automatic termination of temporary employees if they are unable to work, include the statement unless other action is required by applicable federal or state law. There are joint employment responsibilities under FMLA and ADA.
6. Indefinite leave is not a reasonable accommodation in North Carolina.
The 4th circuit court has said that it is unreasonable to expect an employer to hold a job or consider other jobs or extended leave when the employee’s doctor states the employee will be on leave indefinitely. The employee can be terminated if this is the case (after completion of eligible FMLA leave).
7. End of leave communications.
Communicate with the employee by documenting in writing a summary of the leave dates, type, etc. Include the last day worked, the dates of FMLA and the date job reinstatement responsibilities ended, extended leave or other reasonable accommodations made, and the date of termination.
If you have questions about FMLA or other leave rights, please call a member of CAI’s Advice and Counsel team at 919-878-9222 or 336-668-7746.