Managing employee absences, leave entitlements and requests for disability accommodation is a central obligation – and challenge – for employers, large and small. Recent major statutory and regulatory changes under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), and their state and local counterparts, require employers to address leave of absence and disability accommodation issues with increasing frequency and care, while skyrocketing litigation – both by administrative agencies and private litigants – has raised the stakes of decisions made in these areas.
Littler attorneys take a practical, solutions-oriented approach to addressing leave of absence and accommodation issues, enabling employers not only to comply with the thorny problems raised by the intersecting (and often conflicting) laws in this area, but also to administer their leave and accommodation obligations efficiently while proactively addressing potential employee abuse of such entitlements. Of particular emphasis recently – in light of the EEOC’s scrutiny of “maximum leave” and “no-fault attendance” policies – we provide guidance regarding when the obligation to offer leave as an accommodation may arise and the manner in which employers can permissibly place limits in this area, both in general practice and in specific situations. Littler’s broad geographic footprint permits us to pull together a team of attorneys efficiently and provide national employers with cost-effective, thorough reviews of their leave and accommodation policies and practices. It also allows us to monitor legal developments in these areas in order to provide practical and timely advice to all of our clients.
Counseling & Training
Members of the Leaves of Absence and Disability Accommodation practice area have years of combined experience advising clients on issues under the FMLA; the ADA (including both the employment accommodation and public accommodation provisions of the statute); the Uniformed Services Employment and Reemployment Rights Act (USERRA); state family, medical, disability and military leave laws; as well as miscellaneous additional state leave laws (such as pregnancy, jury duty and crime victim leave laws). We can assist employers with the full range of issues in these areas, including those involving: the permitted scope of disability-related inquiries at various stages of employment; ADA and FMLA coverage; proper tracking of employee leave usage; disciplinary decisions involving employees on leave or with medical conditions that may be impacting attendance and/or performance; and the outsourcing of leave administration. We also regularly address employer issues involving the interplay between the FMLA, ADA, workers’ compensation laws, privacy restrictions under the Health Insurance Portability and Accountability Act (HIPAA) and other laws, the Genetic Information Nondiscrimination Act (GINA), state/local leave and disability laws, and employee benefit plans (such as short-term and long-term disability plans). In this context, we routinely:
- Review and update employers’ leave and accommodation policies (including those suggested or used by third party administrators) to provide advice on their compliance with current law;
- Assist employers with developing and implementing an overall strategy and internal procedures regarding FMLA and/or ADA compliance, accounting for variations under applicable state laws, and including methods for addressing coverage decisions, notice and interactive process obligations, fitness for duty and direct threat analyses, confidentiality requirements and approaches to end-of-leave situations;
- Assist employers with proper engagement in the interactive process under the ADA and related state laws. Examples of help we can offer in this area include providing advice on: the proper content of initial and follow-up correspondence to medical providers, the application of the undue hardship analysis and the determination of when the interactive process can be abandoned due to an employee’s failure to engage or provide required information;
- Collaborate with employers to resolve specific leave of absence problems, including the navigation of the FMLA’s rules permitting employers to authenticate and clarify medical certifications, seek second and third medical opinions, and require employees to recertify their need for leave;
- Perform comprehensive audits of employers’ existing policies and procedures to identify and remedy points where employers are exposed to potential liability;
- Conduct training of HR professionals regarding employers’ challenging and frequently-changing requirements under leave and accommodation laws;
- Conduct training on various leave and accommodation related topics for managers, emphasizing their critical role in flagging potential requests for leave and accommodations; and
- Strategize, counsel and represent clients with respect to public accommodations claims brought by individuals and/or the U.S. Department of Justice.
Defending Employers in Employee Leave or Accommodation Disputes
Littler can effectively and efficiently defend an employer in any FMLA, ADA (Titles I and III), USERRA or state law leave or disability accommodation dispute, be it a single-plaintiff or class action case, or the defense of claims brought before the EEOC, the Department of Labor, and state administrative agencies. Attorneys in the Leaves of Absence and Disability Accommodation practice area know the legal concepts involved in these types of disputes because we regularly litigate, provide counsel and monitor case developments in these areas.
Continued Client Awareness of Leave and Accommodation Legal Developments
Littler goes to great lengths to ensure that our clients are advised of, and provided meaningful discussion on, recent legal developments in the employee leave and accommodation arena. In addition to Littler’s blogs, webinars, timely articles and numerous books, members of Littler’s Leaves of Absence and Disability Accommodation practice area frequently present at regional and national seminars, write articles for national publications, and publish or contribute to practical guides and treatises used by lawyers and HR professionals alike.