At a Society for Human Resource Management (SHRM) regional chapter symposium in New Jersey last week, Fisher & Phillips employment attorney David Lichtenberg shared some helpful tips for managing employees on leave. Lichtenberg also discussed several best practices for avoiding lawsuits when it comes to leaves and accommodation, including:
1. Be Careful About Off-Hand Comments
Be cautious and avoid making off-hand negative comments to employees who request leave or are taking leave. Intent is irrelevant as the listener’s interpretation will govern the inquiry. Off-hand comments could be considered harassment and evidence of discrimination in a lawsuit. It is critical to train all supervisors and managers to avoid such conduct.
2. Timing is Everything
Be careful when taking adverse action against a leave taker because the closer in time the adverse action is to the leave, the greater the chance that the employee will argue the action (i.e., discipline, termination, etc.) was retaliatory.
3. Taking Leave Does Not Guarantee Tenure
Leave takers can be disciplined and/or terminated for legitimate nondiscriminatory reasons such as poor performance, misconduct and violating workplace rules. With misconduct, the most important thing is to document and address all issues. Make sure to provide the employee with both written and verbal warnings and, if possible, implement a system of progressive discipline. Conduct an investigation and show the employee was afforded fair and due process.
Leave takers can also be disciplined and/or terminated for poor performance if failing or refusing to meet expectations. Document all performance issues and consider a performance improvement plan. The important thing is to be consistent and provide leave takers with equal treatment as compared to other workers, not better treatment.
4. Leave Takers are Not Insulated from Reductions in Force (RIF)
An employer is permitted to terminate an employee on leave as part of a valid RIF. The employer should make sure to address why the RIF was needed, what groups were included and why the individual as part of a certain group was selected. Maintain thorough documentation of the entire process.
5. Engage in the Interactive Process
Be sure to engage in an interactive process by discussing potential accommodations with the employee in good faith. An employer is permitted to request additional information and medical opinions that show why leave is necessary.
In addition, an employer need not provide the preferred accommodation if a reasonable one would suffice. However, if denying a request for accommodation, make sure to document the reasons why the request was denied.
6. Do Not Automatically Terminate an Employee Who Cannot Return to Work
An employee who cannot return to work and perform the essential job functions should not face automatic termination. That’s because additional leave may be a reasonable accommodation based on the circumstances. An individual assessment and engaging in the interactive process is required.
7. Indefinite Leave is Not a Reasonable Accommodation
A request for indefinite leave under the ADA is unreasonable because it has the potential to create an undue burden and hardship for the employer. An employer need not granted indefinite open-ended leave if an employee is not able to return to work and perform his job duties and responsibilities. An employer is not required to keep a job open indefinitely.
8. Keep Job Descriptions Up to Date
An employer should make sure that its job descriptions are up to date and detailed enough to adequately describe an employee’s essential job functions. If an employee requests leave under the ADA, carefully review the job description to assess whether an undue hardship would result.