Time and again, HR professionals rank “managing employee leave” as the number one compliance problem. How much leave to allow? How to track it? Which leave is covered by the FMLA? How about pregnancy, religious and disability-related leaves? When it comes to employee leave, the best compliance lessons don’t come from a book or government manual, but from the expensive mistakes made by your fellow employers.
Here are three recent leave-related errors that resulted in multi million-dollar legal verdicts. Some mistakes were caused by poorly written policies and others by poor supervisor decisions. All were preventable.
| CASE #1: Can Employees Take Vacation During FMLA Leave?|
During an IT manager’s FMLA leave after foot surgery, he left on a pre-planned vacation to Mexico. He chilled on the beach most of the time because his foot was still in a medical boot. But when HR learned about the trip, he was fired … then he sued.
At trial, the HR person said she believed employees on FMLA could never take vacation. That’s not automatically true. In ruling for the employee, the judge said that “an employee recovering from a leg injury may sit with his or her leg raised by the seashore while fully complying with FMLA leave requirements, but they may not climb Machu Picchu without abusing the FMLA process.” (DaPrato v. Massachusetts Water Resources Authority)
The verdict: a whopping $1.3 million for the employee, including $715k in punitive damages.
The lesson: Even if it appears an employee is misusing FMLA leave, you must make discipline or termination decisions based on a rational review of the facts, including doctor’s certification. When in doubt, check with an attorney (maybe at LEAP’s Employee Leave Roundtables!).
|Case #2: Can You Require Employees be 100% Healed Before Returning?|
An Arizona company’s policy required employees returning from medical leave to show they were completely healed and had no medical restrictions. Employees who couldn’t meet that criteria and didn’t have any leave remaining were fired. The EEOC sued the company, saying the ADA gives all returning employees the right to reasonable accommodations (reassignment, modified schedule, more leave, etc.).
The verdict: $950,000, shared by 23 disabled workers at the company.
The lesson: If you have a “100% healed” policy, rewrite it now. If you learn employees aren’t completely healed after medical or FMLA leave, begin the interactive process to discuss accommodations, including extra leave.
| Case #3: Can You Give More Leave to New Moms than New Dads?|
A financial company’s generous parental leave policy – a full 16 weeks of paid leave after birth – came with a key caveat: It was only available to the “primary caregiver.” The other parent got a max of two weeks. When a male employee asked for the full 16 weeks, he was told that the company considered birth mothers to be the primary caregiver. His complaint grew into a class-action lawsuit.
The verdict: a $5 million settlement, the largest settlement in a U.S. parental leave discrimination case.
The lesson: Federal law makes it unlawful to provide one gender with more (or better) benefits than the other. You can justify longer parental leave for mothers only on the basis of medical necessity. Paid leave beyond the time it would take a mother to recover from childbirth (about six weeks) must be offered to fathers as well.
As you can see, employee leave is a complex – and potentially expensive – legal maze for HR. Learn how to get in compliance (on every aspect of employee leave) with the expert advice you’ll find at LEAP 2020. Plus, you’ll have a fabulous time with your peers at the legendary ARIA Vegas Hotel & Casino.