I’ve been very fortunate to have the opportunity to take over the Leave of Absence process at my company with very little experience besides knowing the ins and outs of the law. Needless to say, I was very nervous about my first few leave cases. I think there are hesitations about saying the wrong thing or even going as far as saying too much. I was fortunate to have the experience I had before because it prepared me for much more than what was to come.
Let’s discuss the Americans with Disabilities Act. In my mind, the law could not have been a better protection for those who need accommodations to become whole at work even though they’re not the same when they return. The law was passed in 1990 by President Bush as a landmark protection for all those who’ve been brushed aside in daily living and even employment opportunities. I enjoy the statement written in the actual law, it says, “Congress recognized physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, but people with physical and mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes or the failure to remove societal and institutional barriers.” In short, there was a need for the ADA to address the long-standing issues which burdened those who are disabled.
I had several leave cases which ended up going over the job protected limit of 12 weeks, one was even past 42 weeks. Needless to say, I took over a system which was so overburdened with work they neglected to handle the leave cases. It was now my job to engage in the interactive discussion with the employee on leave and determine what the restrictions were and how much longer they would last. After determining this, it would then be my job to discuss their restrictions with them and determine if they have any other skills which are not restricted and could be utilized in their current position, or perhaps another position.
This process is quite nerve-wracking since you have to discuss a person’s restrictions and sensitive topics. To ensure I protect myself, I document every single conversation I have with all FMLA or excused absence cases from start to finish. When a person comes in to discuss FMLA, I document the time, place and date as well as what was discussed. If it is a telephone call, I write down the number, time of call and the duration of the call. I also document what is being said in the conversation. And lastly, when the interactive discussion begins, I ensure everything is in writing so I have complete clarity as well as transparency with both Legal and Management before moving forward with a decision.
The trick to the interactive discussion is to determine if the restrictions prevent a person from performing the essential functions of their current role and how long they will last based on physician recommendation. If the person can no longer perform their role permanently, it is then my job to see what job positions we have open and determine what positions the person would be interested in doing contingent on their ability to perform the essential functions. This is a good faith effort to make an accommodation by doing a simple job search. However; I’m not legally obligated to create a position if there is not one available at the site. All of my leave cases have wanted to come back and work; however, their restrictions and the nature of their conditions prevent them from performing the grueling task of manual labor or lifting.
One thing made complete sense to me, it was determining hardship. If I have a leave case which is outside of their 12 weeks and require another 2 weeks of leave, it is usually a pretty simple answer. However; if the request is for another 3-4 months, the answer will be a little different. I don’t determine this without consulting legal, management and my HR manager. Reasonable and Unreasonable is not always a clear answer. It makes me chuckle because many laws are written with large areas of grey which are not easily interpreted by non-lawyers.
After engaging in the interactive discussion and determining there are no accommodations (including additional leave), the position is usually to move forward with separation of employment. It’s not easy to say goodbye to any loyal employee, but a drafted letter should address the conversations had, the position of the company in needing to replace the employees role and how the employee is absolutely eligible for rehire when they’re able to return. Always communicate with the employee in person or by phone and mail the letter afterwards.
The general rule of thumb is to talk with the employee as often as possible and show a level of care and understanding. All of these individuals are having a difficult time, so it is good to have a high level of empathy and understanding. The law scares many of us from being human, but it is okay to let someone know how you’re sorry how difficult this situation must be for the person. A little care goes a long way when discussing someones life situation (but not digging into details or begging for more details).
If you want to read the full text of the ADA, here is a link to the website: