Shuffling work duties when an employee takes a leave of absence—whether to accommodate a pregnancy, health issue, or other personal need—is a challenge. But navigating the legal risks involved in managing that leave is even trickier. Complying with the labyrinth of medical leave and discrimination acts is a required competency for any modern Human Resources worker. And there are numerous rules to administer—and master.
Juggling the different statutes is no easy task, especially when they all have different purposes and rules, confirms labor and employment law attorney Susan Desmond. In her audio conference for Audio Solutionz, “Managing Employees’ Leaves of Absences,” Desmond shares updates on the latest regulations and court decisions, as well as tips to administer the various leave requirements concurrently.
ADAAA, FMLA, GINA, and PDA
There are a number of regulations you must fluently understand to properly file employee leave claims—and you must know which apply in an individual employee’s case. While the following regulations involve complex rules, here are the basic tenants of each:
- ADA Amendments Act of 2008 (ADAAA) – Enforced by the Equal Employment Opportunity Commission (EEOC), the ADAAA amended the Americans with Disabilities Act of 1990 (ADA) to broaden the definition of the term disability. The ADA makes it illegal to discriminate against a person with a disability and to retaliate against a person who complained about or filed a discrimination charge, or participated in an employment discrimination investigation or lawsuit. Employers must also reasonably accommodate the known physical or mental limitations of an individual with a disability.
- Family Medical Leave Act (FMLA) – Enforced by the Department of Labor (DOL) Wage and Hour Division, the FMLA “entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” The terms vary, based on individual situations.
- Genetic Information Nondiscrimination Act (GINA) – Enforced by the EEOC, GINA “prohibits the use of genetic information in making employment decisions, restricts employers and other entities from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.”
- Pregnancy Discrimination Act (PDA) – Enforced by the EEOC, the PDA prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions, and states that “women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.”
Because each scenario is different, you have to determine which laws and regulations are relevant to the employee taking leave and which ones your company is required to uphold. For example, not all employers are subject to the FMLA, including companies employing fewer than 50 people. And even if the employer is subject to FMLA, the employee must meet eligibility requirements. But that’s just the federal mandate—you have to keep up with your state and local laws on these issues as well.
Bottom line: You must know how to treat employee leaves under various rules. For instance, in the case of pregnancy leaves, you’ve got the ADAAA, FMLA, and PDA to reconcile—and, yes, pregnancies are addressed differently under each statute.
Know How to Handle Surprises
These dilemmas aren’t exclusive to maternity leave. On-the-job injuries that lead to workers’ compensation claims and out-of-the blue health challenges sometimes force employees to shift their employment status. With unexpected absences, you’ll have other challenges than just trying to figure out which plan to use to pay your employee.
Are you properly trained and prepared to file these claims? You aren’t, if you can’t answer these questions:
- Do workers compensation statutes require an employer to offer light duty positions?
- Even if your state statute doesn’t require light duty positions, will the ADAAA require it?
- Can you terminate an employee out on workers’ compensation leave for refusing a light duty position?
- Do you know when you are required to provide COBRA notices to those out on leave?
- Can you run workers’ compensation payments concurrently with other paid leave such as sick leave, vacation, short term disability, etc.?
If you don’t know all the answers, you can! Desmond answers all these questions—and more—in her session. She explains the pros and cons of light duty positions and outlines the differences between the ADAAA and FMLA when it comes to leaves of absences.