Published in the August 2010 Coal USA Magazine

Managing employees who miss work because of their own injury and illness has grown into an often complicated and confusing issue. Employers must wade through overlapping state and federal laws, as well as their own personnel policies, collective bargaining agreements and employee benefit plans.

While this only touches on the potential pitfalls that some of these laws create, there are strategies that employers can use to effectively manage employee leave.

The federal Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to provide eligible personnel with up to 12 weeks of leave for their own serious health condition.

Covered leave can be taken in a block, intermittently or on a reduced leave schedule when medically necessary.

An employer has some control over how FMLA-covered leave can be taken. For example, an employee must make reasonable efforts to schedule leave for planned medical treatment to avoid unduly disrupting the company’s operations.

If intermittent or reduced-schedule leave is foreseeable, the employer may transfer the employee to a different position. An employee who is unable to work mandatory overtime can be charged FMLA leave for the overtime missed.

An employer must maintain an employee’s health care insurance while the worker is off work on FMLA-covered leave. However, after the employee exhausts the 12 weeks of leave, the terms of the health care plan control how long the company must maintain the employee’s health insurance.

One new change: under the Department of Labor regulations adopted last year, time missed for FMLA-covered leave can count against any attendance bonus. However, covered time off still cannot count against an employer’s absenteeism control policy or contract provision.

Perhaps the most difficult aspect of administering FMLA leave is the fact that employees do not even have to request FMLA leave for time off to be covered. Once the employee gives sufficient information to even suspect that leave is covered, it is the employer’s obligation to determine whether to count the time against the employee’s FMLA entitlement.

Some situations that may trigger notice of the need for FMLA leave include a lost-time accident; a condition covered under a short-term disability plan or a sickness and accident provision; hints from doctor’s slips about the nature of the health condition; more than three consecutive days missed for illness or injury; pregnancy; work missed sporadically for the same medical reason; or employee reports of specific illness or injury.

However, an employee calling off saying simply “I’m sick” is not enough to trigger the employer’s responsibility to determine FMLA-covered leave.

If an employee returns to work within FMLA’s 12-week allotment, they must be restored to the same position they held prior. If that position is not available, the employee must be placed in an “equivalent position” – equivalent in pay, benefits and other employment conditions.

However, the employee is not entitled to any greater rights than they would have had if they had not taken FMLA leave.

So how can an employer curtail abuse? Employers should require employees off on any type of sick leave to check in at regular intervals.

Furthermore, employers should require employees to certify all health conditions that require time off.

If an employee’s certification expires, it should be required to obtain a new certification to verify the need for a leave extension or for any additional FMLA leave needed after the certification expiration date.

This certification process is one of the employer’s most important tools to manage the employee’s time off, particularly if the employee is using intermittent FMLA leave. Keep in mind that the FMLA limits what type of information an employer can request.

Consequently, the best practice is to use certification forms provided by the Department of Labor.

Also, the employer should consider requiring employees to provide a fitness for duty certification from their health care provider before being reinstated.

Employers can require employees on FMLA leave to exhaust all accrued paid leave, including vacation and sick pay, during FMLA leave so long as the employer allows the worker to use that leave for illness or injuries, unless the employee is receiving workers’ compensation or STD benefits (although the employee may choose to use the leave if his benefits only partially replace his income).

In addition to the FMLA, the federal Americans with Disabilities Act and related state anti-discrimination statutes prohibit employers from discriminating against qualified employees with disabilities and require employers to provide reasonable accommodations to those employees.

So, the “serious health condition” that keeps an employee from working also can constitute a disability covered under disability discrimination laws. Like FMLA, the employee does not have to say “magic words” to request a reasonable accommodation, so the employer must watch for potential accommodation issues like the need for time off.

Yes, you read that correctly – leave can be a reasonable accommodation for a disability.

Consequently, an employee who exhausts FMLA leave may still be entitled to additional leave under these laws.

Likewise, an employee who is not eligible for FMLA coverage in the first place may be entitled to leave as a reasonable accommodation as an alternative.

Intermittent leave and reduced work schedules also may be reasonable accommodations for a disability.

However, like FMLA leave, disability leave may not be applied against the employer’s attendance policy.

So, how much leave is reasonable? Courts in some jurisdictions have found anywhere from 12 weeks to 12 months to be a reasonable period. The key is that the leave must not be for an indefinite time period.

Consequently, each case must be assessed on its own merits, considering the employee’s job, length of additional leave necessary and other factors.

One break for employers – leave as a reasonable accommodation need not be paid. But again, the employee may choose to use paid leave or this leave may overlap with STD or workers’ compensation leave.

How does the employer determine whether the employee has a disability? The key question is, “does the medical condition substantially limit a major life activity?”

The bottom line: it is not always easy to manage employees’ time off for injury or illness. However, with a little planning and a bit of patience, it can be effectively accomplished.

Erin E Magee is a member of Jackson Kelly’s labor and employment and coal practice groups. Her practice focuses on labor and employment consultation and litigation, ERISA matters and coal-related litigation.