solving the puzzle disability and family leave, ada, workers compensation when employees are out of...

When Employees Are

Out of Work:Solving the PuzzleSolving the Puzzle

Disability and Family Leave, Disability and Family Leave, ADA, Workers CompensationADA, Workers Compensation

Presented by: Jennifer Chandler Hauge, Esq.

June 7, 2006

A Risk Management Webinar

www.nonprofitrisk.orgwww.nonprofitrisk.org

ObjectivesObjectives Assist you with your concerns about Assist you with your concerns about

managing an employee being “out on leave”managing an employee being “out on leave” Clarify federal and state law requirementsClarify federal and state law requirements Provide a framework for identifying what the Provide a framework for identifying what the

nonprofit’s obligations are towards any nonprofit’s obligations are towards any employee who is out of work on leaveemployee who is out of work on leave

Your questions, experience and concerns…Your questions, experience and concerns…


What What Laws Govern?Laws Govern?

Americans with Disabilities Act and USERRAAmericans with Disabilities Act and USERRA Federal: Family and Medical Leave ActFederal: Family and Medical Leave Act

““FMLA” coverage is limited to workplaces with FMLA” coverage is limited to workplaces with 50+ employees 50+ employees

State Family Leave: 11 states State Family Leave: 11 states State leave laws for other reasonsState leave laws for other reasons Workers Compensation/Disability leaveWorkers Compensation/Disability leave Nonprofit’s own policies on leaves of absenceNonprofit’s own policies on leaves of absence


A Big OopsA Big OopsExamples of RISKSExamples of RISKS

Wrongful Discharge in violation Wrongful Discharge in violation of family leave: terminating an of family leave: terminating an employee who should have employee who should have had her job protected because had her job protected because she was eligible for family she was eligible for family leaveleave

Retaliation: taking disciplinary Retaliation: taking disciplinary action against an employee for action against an employee for absenteeism when the absenteeism when the employee had a work-related employee had a work-related injury and filed a workers injury and filed a workers compensation claimcompensation claim


Other RisksOther Risks

Violation of the ADA for failing to Violation of the ADA for failing to negotiate a reasonable accommodation negotiate a reasonable accommodation (leave of absence) for an employee(leave of absence) for an employee

Thinking that you CAN’T terminate an Thinking that you CAN’T terminate an employee who is out of work due to:employee who is out of work due to:

1.1. A temporary disabilityA temporary disability

2.2. A work-related injury (workers comp) A work-related injury (workers comp)


Sally Six WeeksSally Six Weeks Sally has no more sick Sally has no more sick

leaveleave Sally has a temporary Sally has a temporary

disability disability What leave is she on?What leave is she on? Is her job protected?Is her job protected? What happens to her What happens to her

benefits?benefits? Can her employer hire Can her employer hire

someone to take her place?someone to take her place?


Policy Policy Issues Raised When Issues Raised When

Employees are on Employees are on LeaveLeave How long is the leave for?How long is the leave for?

What happens to group health insurance?What happens to group health insurance? Does the employee have to use other accrued Does the employee have to use other accrued

paid leave during the leave of absence?paid leave during the leave of absence? Is there accrual during the leave period?Is there accrual during the leave period? Reinstatement: same position? Reinstatement: same position? What if the employee is unable to perform her What if the employee is unable to perform her

job when she returns?job when she returns?


How Long How Long is the Employee is the Employee

Entitled to Leave?Entitled to Leave? Nonprofit must identify Nonprofit must identify what leavewhat leave applies: applies:

Employees might not request leave but they Employees might not request leave but they are still eligibleare still eligible

Supervisors need to be attuned to leave Supervisors need to be attuned to leave policies policies

Nonprofit should send written notice to Nonprofit should send written notice to employees identifying their leave and any employees identifying their leave and any rights and obligations during leaverights and obligations during leave


What Leave What Leave Applies?Applies?

FMLA or state family leave?FMLA or state family leave? Does the nonprofit have its own leave Does the nonprofit have its own leave

policy for non-eligible Family Leave?policy for non-eligible Family Leave? ADA – obligation to accommodateADA – obligation to accommodate Disability and workers compensation leaveDisability and workers compensation leave

No job protection or requirement to maintain No job protection or requirement to maintain benefits benefits


TipsTips Don’t wait for the employee to request

leave or assume that the employee is eligible for what is requested

Written notice to employees out on leave helps to manage their expectations about the impact of leave on their benefits and whether or not they will be able to return to work and under what conditions


Caution: Caution: If an employer states in its If an employer states in its

policy manual that it follows policy manual that it follows the federal FMLA, it will be held the federal FMLA, it will be held

to all the regulatory to all the regulatory requirements of the Actrequirements of the Act


FMLA requirementsFMLA requirements

Written notice to all employees who Written notice to all employees who request leave, or written designation of request leave, or written designation of leave if not requested - 8 items includedleave if not requested - 8 items included

Policy must be contained in handbookPolicy must be contained in handbook Reinstatement to equivalent positionReinstatement to equivalent position Documentation of complianceDocumentation of compliance FMLA does not reduce greater rights FMLA does not reduce greater rights

afforded by state lawafforded by state law


Risk Management Best Risk Management Best Practices Practices

Know what laws apply to your nonprofitKnow what laws apply to your nonprofitDocument what leave applies and clarify Document what leave applies and clarify

employees’ rights and obligationsemployees’ rights and obligationsFollow the policies in your handbookFollow the policies in your handbookBe consistent in applying policies Be consistent in applying policies Respond to complaints -- resolve internallyRespond to complaints -- resolve internallyNo retaliation – objective review before actionNo retaliation – objective review before actionSeek advice from legal counsel if necessarySeek advice from legal counsel if necessary


SupervisorsSupervisors Train supervisors on the Train supervisors on the

policies and the need for policies and the need for identifying what type of leave identifying what type of leave appliesapplies

Require supervisors to Require supervisors to document all leave requests document all leave requests and responsesand responses

Get together with supervisors Get together with supervisors periodically to discuss potential periodically to discuss potential leaves of absence scenariosleaves of absence scenarios

Risk ManagementRisk Management

Leaves of Absence = a Staff ShortageLeaves of Absence = a Staff Shortage


Worst CaseWorst Case Can the nonprofit accomplish its goals, such as Can the nonprofit accomplish its goals, such as

the completion of a specific grant-funded the completion of a specific grant-funded program, with a staff shortage?program, with a staff shortage?

What is the back-up plan if certain employees What is the back-up plan if certain employees are out on a leave?are out on a leave? How long can your nonprofit last without certain How long can your nonprofit last without certain

employees?employees? What is the financial impact of an employee being out What is the financial impact of an employee being out

on leave?on leave? What if several employees are out on leave at once?What if several employees are out on leave at once?


Balance Flexibility to staff with Balance Flexibility to staff with risk management for nonprofitrisk management for nonprofit

When in doubtWhen in doubt Confer with legal Confer with legal

counselcounsel Provide leave for the Provide leave for the

federal 12-week period federal 12-week period and document and document

We Hope You’ll Join us for our We Hope You’ll Join us for our Next Webinar: Next Webinar:

July 12July 12thth

Regulating Employees’ Conduct Regulating Employees’ Conduct Outside WorkOutside Work

Thank you! Thank you!

Please complete the Webinar evaluation. Please complete the Webinar evaluation. We will send a follow-up email containing the link to the We will send a follow-up email containing the link to the

Survey Monkey tool.Survey Monkey tool.


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solving the puzzle disability and family leave, ada, workers compensation when employees are out of...

Documents

orgwhat leave

leave policy

leave of absence

leave period

impact of leave

violation of family

employees state family

noneligible family leave