The third largest market segment in the United States is people with disabilities. To celebrate the contributions of workers with disabilities and highlight inclusive employer practices and policies, October is National Disability Employment Awareness Month (NDEAM). As part of the Office of Disability Employment Policy’s “31 Days of NDEAM,” days two and three focused on reviewing company policies and training supervisors. When it comes to leave of absence, disability, and accommodation programs, NDEAM is the perfect opportunity to review policies, procedures, and best practices and align them with the employer’s Disability Equity Inclusion and Accessibility (DEIA) strategy and health plan strategy. In this three-part blog series, we’ll first focus on managing leave requests. Stay tuned for parts two and three which will focus on short-term and long-term disability and accommodations.
Leave of Absence
Correctly identifying and designating an employee’s request for leave can reduce risk of violating federal, state, and local leave laws. These laws are ever-changing, making it critical to understand the applicable laws for your jurisdiction(s) and to stay current on new laws and/or amendments. These laws may:
- allow paid (income replacement) or unpaid leave, may offer job protection and other benefits such as the ability to maintain group health coverage;
- allow leave for the employee with a disability or to care for an eligible family member (or a designated person); and
- cover a variety of eligible reasons such as the employee’s own serious health condition, a family member’s serious health condition, bonding with a new child, military caregiver situations, a qualifying exigency for an eligible military member, school activities, organ/bone marrow donation, activities for a domestic violence victim or as a crime victim, voting, and more.
Employee’s Request for Leave
There are no magic words for requesting leave. The employee doesn’t need to specify the need for leave by stating a particular law’s name, such as the federal Family and Medical Leave Act (FMLA). The employee also is not required to share their diagnosis or medical condition with their direct leader. The employer’s leaders should be regularly trained and retrained to understand the leave of absence process and to direct employees appropriately based on an employee’s communication of a potential leave of absence situation.
Notifications, Posters and Process
Leave laws mandate notifications/posters and specific timing for those notifications, such as at the time of hire and at the time the employee requests time away from work. Consequently, it may be helpful to collaborate with internal talent acquisition colleagues. Make sure to review policies and procedures for compliance with these requirements and have a consistent, communicated process for employees to understand their rights and obtain and return required paperwork.
Increment of Time
A leave law may allow the employee to take time on a continuous, intermittent, or reduced schedule. Under some laws, based on reason for the leave, allowing time on intermittent or reduced schedule may be up to the employer. Making purposeful decisions on usage of intermittent and reduced schedules may be part of the employer’s stay-at-work strategy to retain valued employees. Stay-at-work strategies help employers reduce the cost of absenteeism and lost productivity. These strategies allow employees to contribute and feel valued in the workplace. Whatever the employer’s reason, it must administer the policy consistently for all employees.
Leave laws may have restrictions on whether other leave laws or company programs (such as paid time off) may run concurrently or may allow the employer to decide. Similar to increments of time, strategic decisions on when to run programs concurrently (or not) may help with the employer’s stay-at-work efforts. Once determined, the employer should communicate appropriate information to employees through its policies and notifications.
The employee’s direct leader can communicate with the employee throughout the employee’s absence period. In fact, it can help with the employee’s overall engagement and motivation to return to work! However, too much communication can feel intrusive and become non-compliant (e.g., interference, retaliation or wage and hour claims). Before the employee’s leave period starts, the leader should ask the employee if they are comfortable if the leader reaches out for well-being purposes and whether text, email or telephone would be preferred. The leader also should verify if the employee is comfortable sharing their address with other team members for cards or other gifts potentially delivered to the employee’s residence. The leader should follow any company procedures related to use of address and gifts and/or use company approved vendors; some employees may not be comfortable with delivery vendors at their residence.
The employer may risk non-compliance in situations where the leader or colleague’s communications (1) exceed occasional, brief well-being checks, (2) ask the employee about work/to perform work that is not related to critical employment information such a reminder to complete open enrollment elections, or (3) pressure the employee to return to work. Those are three examples of potential non-compliance and are not exhaustive, as other situations could occur which cause the employer to risk non-compliance. The employer may, however, ask for information related to the employee’s leave through its established leave of absence process. It’s good practice to review those processes annually to make sure they are compliant with applicable law. When in doubt, leaders should consult Human Resources on what action is appropriate.
What Employers Should Do
During NDEAM, employers should start reviewing their leave of absence policies, processes, and practices for compliance with federal, state and local law. It’s a great time to coordinate program design and strategies across the employer’s DEIA, health plan and absence management initiatives. Clear policies and consistent management make it easy for employees to understand their benefits, as well as their rights and responsibilities during the leave of absence cycle. They also help the employer mitigate employment risks. Finally, leaders should be regularly trained and should stay engaged with their employees during their leave of absence.
What ReedGroup Is Doing
If you’re looking for assistance managing leave of absence, disability benefits, or accommodations or to ensure compliance across your organization, ReedGroup has solutions for you. Review our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.