Gary Clark, attorney and partner with Quarles and Brady, LLP, led our discussion of the challenges involved with excessive employee absenteeism. Our conversation focused especially on intermittent leaves for which the Family Medical Leave Act (FMLA) could apply.
Mr. Clark observed that many employers focus only on the applicability and compliance with the FMLA, when increasingly the Americans with Disabilities Act (ADA) may be relevant.
- With ADA changes in 2009, what constitutes impairment or inability to perform essential functions was greatly expanded. With additional ADA changes in 2014, the disability may be temporary impairment, not only permanent or long-term impairment. So, for example, if an employee with frequent migraine headaches has missed 4-6 weeks of work, the ADA might well apply for this circumstance construed as the employee’s temporary impairment. Other examples that might involve excessive or intermittent absences might include a person experiencing depression or post-traumatic stress disorder.
- Mr. Clark noted that exploring ADA relevance is defensible after extended absenteeism, even if the FMLA limits have not yet expired. This gives employers the opportunity to address more extensive questions in writing to the medical professionals administering care, thereby reducing the risk of fraud and increasing the information available for how you might better accommodate the employee’s temporary impairment. This also gives employers the opportunity for more in-depth inquiry and discussion with the employee regarding what options they can consider for reasonable accommodation without an undue burden.
- Mr. Clark did caution that employers should establish general policies for when and how to address ADA relevance, helping to ensure that all steps taken are fair and consistent, without adverse impact on protected classes.
Thanks to Gary, who is also a KDHRA member, for the insightful and engaging discussion. Colonial Café East nourished our bodies, but Gary nourished our professionalism with his knowledgeable examples! I’m definitely not a legal expert – and these notes are certainly not to be construed as legal advice. Contact us at Frank’s Employment for referrals to labor law professionals.
And, whether short-term, long-term, or intermittent employee absences leave your business struggling, request a talented Frank’s temporary with just one click!
by Elyse Williamson