December Employment Law Bulletin
New Year’s Resolutions for HR
It is the time of the year to make resolutions for the new year. Often, these resolutions involve either exercising more, eating less, or a combination of both. We offer the following ten resolutions for business leaders with HR responsibilities to adopt for 2020:
- Resolve to harmonize and coordinate obligations under the FMLA, ADA, and workers’ compensation when providing leave.
a. Train managers to know that the employee does not have to request “FML” by name for FMLA to apply. Train managers to recognize and report to HR situations where an employee has a workplace injury, medical condition, or other life circumstance where the FMLA may be applicable.
b. Timely issue notices of eligibility, rights and responsibilities, certification form, and designation notices as required by the FMLA in all circumstances, even where the employee is receiving benefits under workers’ compensation or short term disability.
c. Once FML expires, neither workers’ comp nor the ADA requires a guarantee of reemployment to the same or equivalent position. The employer has the right to tell the employee if the employee will not return in a timely manner (subject to the below) that the employee’s job will be filled and, if and when the employee is able to return to work, the employer at that time will consider what position, if any, is available.
d. Eliminate or substantially revise all written policies or unwritten practices calling for automatic termination of employees unable to return after FMLA or any other grant of leave. When FML expires and an employee is unable to perform his/her job, an employer is not free to terminate. The ADA may require a reasonable extension of unpaid leave for a defined period of time as an accommodation. However, requests for indefinite extensions of leave are not reasonable.
e. Eliminate or substantially revise all written policies or unwritten practices requiring an employee to be able to return to work without restriction before being returned from FML, a work-related injury, or other extended leave. Under the ADA, the employer has the obligation to provide reasonable accommodation and cannot require any employee to prove they are “100% healed.”…
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