Employers with 50 or more employees must offer eligible employees up to 12 weeks of unpaid leave under the Family Medical Leave Act (FMLA). But what about employers with less than 50 employees? Are they required to provide a leave of absence to an employee with an illness or injury or to an employee who has a family member with a serious illness or injury? Quite possibly. There are a number of federal and state laws which may require an employer to provide a leave of absence, even when the employer is not covered by FMLA. Continue reading
The federal Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid leave in a 12 month period where their job is guaranteed upon their return. The law also requires that any group health insurance benefits the employee participates in are continued for the duration of the FMLA leave as if the employee was still working full time.
FMLA only applies to companies with 50 or more employees during each of 20 or more calendar workweeks in the previous or current calendar year. This may include members of controlled groups and joint employers if the total employee count is 50 or more. In addition, all public agencies (including local, state and federal government agencies) as well as public and private elementary or secondary schools are covered employers regardless of the number of employees.
Occasionally, employees want or need to be away from work after they have used up all their accrued vacation, paid sick leave, and paid personal time off. For example, an employee may be out collecting Workers’ Compensation benefits for months, even a year or more. So, you need to let employees know the circumstances under which they may take unpaid leaves, how long you may hold a job open, and when employment terminates. Here’s an example of a dilemma an employer might face.
You hired a disabled veteran. You’re giving extra time-off to an employee who needs chemotherapy. You feel you’re doing everything you can to make “reasonable accommodations” for your employees protected under the Americans With Disabilities Act (ADA) and similar state laws.
You may need to examine more than your hiring practices and benefits. Look at your everyday actions and the everyday actions of your managers and supervisors. Discrimination against the disabled can be subtle and unintentional. Continue reading
Question from an employer: We have an employee who is receiving treatment for an injured rotator cuff. She has seen an orthopedic specialist and has had physical therapy. On her second visit to the orthopedic specialist, he determined that her therapy helped. The employee didn’t need surgery but did require more time to heal the tear. Her work duties required limited lifting.
This employee works in a very physically demanding department and we have been able to keep her in the department by having her assume the lightest job duty. Prior to her injury, all employees in the department rotated so they were able to experience the lightest and heaviest jobs throughout each day. The injured employee’s situation has put a strain on the others pulling her slack. We have not transferred her to a totally different department because she would have to take a cut in pay and we thought there would be consequences to us for doing that.
Can we require her to move to another department to accommodate her need for light duties even though she would receive a cut in pay?
Answer: This is one of those employer situations where there is no simple, black and white response.
Start with the employer’s obligations under the Americans with Disabilities Act (ADA): A private employer with 15 or more employees must reasonably accommodate disabled applicants and employees who are covered by the ADA. Your state law may require similar obligations on employers in your state.
Although the total number of cases filed against employers in 2014 was down slightly from the year before, charges are up significantly from a decade earlier. The EEOC has not given a reason for the long-term increase. However, many HR professionals and employment law attorneys attribute it to the aging population and an expanded disability definition that took effect in January 2009.
Under federal law, disability discrimination can occur when:
You always want to be careful when interviewing job applicants so you don’t ask questions which can lead to legal trouble. For example, here’s a question you should avoid: “Have you ever been injured on the job?”
Due to laws which protect disabled individuals from discrimination, you may want to brush up on interviewing etiquette to make sure you’re not discriminating against persons with disabilities.