(HR) Quell Compassionate Impulses—Or Face ‘Regarded As’ Claims

The Two Problems:

Fentin, who is a partner in the Springfield, Massachusetts, law firm Skoler, Abbott & Presser P.C., points out the two poles of dealing with employees with chronic illnesses:

Supporting the employee with chronic illness

Managing the employee with the chronic illness.

Balancing these two needs isn’t easy, Fentin admits. (Fentin’s comments came at the Advanced Employment Issues Symposium, held recently in Las Vegas.)

Challenges:

•           Compassionate employer impulses. For example, an employee is crying. The manager wants to say, “Are you OK? In pain? Depressed?” But that concern can lead to a “perceived disability” claim.

•           Urge to inquire. Resist the impulse to inquire about employee illnesses/problems unless the employee seeks accommodation or you have reason to believe accommodation is necessary. If the need for accommodation is apparent, engage in the interactive dialogue.

•           Urge to take action. Train managers that it is not up to them to decide or take action; their job is to inform HR. If they receive a notice of leave, they should follow your Family and Medical Leave Act (FMLA) protocol.

•           Mandatory EAP referrals. Offer employees support through your employee assistance program (EAP), but do not make “mandatory referrals.” Again, they set you up for a perceived disability claim.

Some examples of typical accommodations:

•           Breaks to consume food with medication

•           Breaks or time off for rest or treatment

•           Reduced hours or days of work

•           Leaves of absence (ADA or FMLA)

•           Changes in equipment or work location

FMLA and ADA:

Remember that you should consider extending leave after FMLA leave is used up with an ADAAA leave of absence.

However, note that the FMLA requires maintenance of health insurance but the ADA does not. The employer may consider extending FMLA health coverage during the ADAAA leave. Let the employee know, “Here’s what your health insurance payments will be.”

Be careful about setting precedent here, says Fentin.

Comparing ADA and FMLA:

It’s helpful to have a clear picture of the differences between the two laws, says Fentin:

FMLA	ADA
Eligible only after 12 months and 1,250 hours	Eligible day one, before eligible for FMLA and after FMLA expires
Limited amount of leave	Leave not limited unless “indefinite”
Intermittent leave mandatory	Not required to tolerate erratic, unreliable attendance
Must maintain employer’s share of health insurance	May require employee to pay full insurance premium
Restore to same or substantially similar position	Restore to exact same position at end of leave
If certified, must provide leave	May not need to provide leave if it would be an “undue hardship”

Think your managers and supervisors are confused by the FMLA? And ADA? And FLSA? And that’s just the basics—experience suggests that the ways your managers and supervisors can cause trouble are just about endless. How do you know if they are following your policies?

There’s only one way to find out what’s really going on—regular audits.

The rub is that for most HR managers, it’s hard to get started auditing.

Check out the source of this article for links to Audit checklists and other essential items in performing your internal HR audits.

Source: HR Daily Advisor