Absenteeism

Treatment of employee absences, once a fairly simple concept, has turned into a maze of regulatory constraints. This change is due to the interplay of three main factors: the Americans with Disabilities Act (ADA), the federal Family and Medical Leave Act (FMLA), and state workers’ compensation laws. These three factors have a major effect on any covered employer’s policies concerning employee absences due to injuries and/or health problems.

Significance of the ADA

The ADA, in general terms, requires employers to make reasonable accommodations for qualified applicants and employees with a disability if making these accommodations would allow the applicant or employee to perform the essential functions of the position. The ADA effects an employer’s absenteeism policies where a modified work schedule or time off from work would be a reasonable accommodation to the employee’s disability.

Significance of the FMLA

The FMLA generally requires covered employers to provide up to twelve weeks of unpaid leave in a twelve month period to eligible employees who need the time off for the birth of a child, for the placement of a child for adoption or foster care, for the employee’s serious health condition that prevents him/her from performing the essential functions of his/her position, or for the serious health condition of a parent, spouse or child where the employee is needed to care for the family member.

Following are the main features of the ADA, the FMLA and state workers’ compensation laws with regard to employee absenteeism.

The ADA and Leaves of Absence

Employers covered by the ADA are barred from discriminating "on the basis of disability against a qualified individual with a disability" with regard to "leaves of absence, sick leave, or any other leave."

The ADA regulations bar an employer from asking an applicant how often the individual will require leave for treatment or will use leave due to incapacitation because of the disability. However, the employer is permitted to state the attendance requirements of the job and to inquire whether the applicant can meet them.

The EEOC manual on the ADA states that "an employer may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave." The ADA regulations further explain that reasonable accommodation may include "part–time or modified work schedules" or "reassignment to a vacant position," and that "other accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment."

Reasonable accommodations are not required when they would result in "undue hardship" to an employer’s business. Generally, an undue hardship is defined as an act that requires "significant difficulty or expenses" in relation to the size of the employer, the resources available and the nature of the operation. The EEOC manual on the ADA provides that "an employer may not claim undue hardship solely because providing an accommodation has a negative impact on the morale of other employees."

The EEOC manual lists some of the factors which will be considered in determining whether a requested accommodation to a disability is an undue hardship. It also provides the following example:

If restructuring a job to accommodate an individual with a disability creates a heavier workload for other employees, this may constitute an undue hardship. But if other employees complain because an individual with a disability is allowed to take additional unpaid leave or to have a special flexible work schedule as a reasonable accommodation, such complaints or other negative reactions would not constitute an undue hardship.

Taking the FMLA into Consideration

A covered employer under the FMLA is one that has employed fifty or more employees for twenty work weeks in the current or preceding calendar year. Such employers must grant up to twelve weeks of unpaid leave in a twelve month period to eligible employees.

Employees are eligible if they:

• are employed at a work site where the employer employs fifty employees within a seventy–five mile "radius;"
• have been employed by the employer for at least twelve months, not necessarily continuously; and
• have worked at least 1250 hours in the twelve–month period immediately preceding the request for leave.

The employer may require that the twelve weeks of FMLA leave be taken all at one time, unless:

• the leave is needed due to the serious health condition of the employee or his/her spouse, parent or child, or;
• an intermittent or reduced leave schedule is medically necessary, in which case the intermittent or reduced leave schedule must be allowed. 

The employer may require that the employee transfer temporarily to an alternative available position with equivalent pay and benefits if this would better accommodate the recurring periods of leave.

During FMLA leave, an employer must continue any employee health insurance coverage under the same terms as before. As long as the employee continues to contribute his/her share of the insurance premium, the employer must continue to make the same share as before.

At the end of an FMLA leave, employees must be returned to the same or an equivalent position with no loss of pay or benefits accrued as of the time the leave commenced. There is an exemption to this return–to–work requirement for certain narrowly defined "key employees."

Employers are prohibited from interfering with, restraining or denying the exercise of any FMLA rights. According to the Department of Labor regulations, employers cannot discourage employees from using FMLA leave. Also, employers cannot attempt to circumvent the FMLA by such techniques as transferring employees from one work site to another for the purpose of reducing work sites, or to keep work sites below the 50–employee threshold for employee eligibility under the Act."

The FMLA requires that employers that provide an employee handbook or other documents or notices regarding the employer’s policies on leave, attendance and similar matters must include the following items in those documents:

• information about FMLA rights and responsibilities, and
• the employer’s policies regarding the FMLA.

The FMLA is an extremely detailed law, and the DOL regulations for it are even more complex. Although a comprehensive study of the FMLA is beyond the scope of this article, the general framework of the law provided above reveals a number of points of distinction from the ADA.

Adding Workers’ Compensation to the Maze

State workers’ compensation laws provide benefits to employees for job related injuries, whether or not the injury is permanently disabling. In addition to reimbursement for medical care and treatment for job related injuries, workers’ compensation statutes typically provide for salary continuation and benefits for temporary incapacity and permanent impairments.

Is a worker injured on the job protected by the ADA or entitled to FMLA benefits? The answer may be "yes" if the employer is covered by those laws and the injured worker has a "serious medical condition" and/or an impairment that "substantially limits a major life activity," or has a "record of" or is "regarded as" having such an impairment.

Achieving Compliance

The development and implementation of a written set of policies governing absenteeism, leave and return to work is a crucial first step toward achieving compliance with both federal statutes and coordination with state workers’ compensation laws. The process of developing such a policy will help to focus the employer on the myriad of issues that should be addressed under the FMLA and the ADA, and on the importance of coordinating those issues with its entire strategy regarding leaves of absence.

Posted 10/10/97