Disciplining Employees for FMLA and ADA Abuse

Although the Family and Medical Leave Act does give workers
the ability to take long blocks of leave, it does not give them the right to
take random days off or arrive late without a valid excuse.  As soon as the 12-week FMLA window expires,
the Americans with Disabilities Act will appear to give workers open-ended
leave.  This can be scary ground for many
employers as disciplining their employees could triggers some type of
disability discrimination claim.  This is
a just fear as the average FMLA discrimination settlement from 2012-2018 was
$505,000, while the average ADA settlement was $2 million.  

Disability leave abuse usually comes in three forms:

1.      
Failure to provide appropriate FMLA medical
certification

It is extremely important that you check with qualified legal counsel to
ensure that your attendance policy is compliant with all of these laws.  You must take into consideration every law
before you decide to discipline an employee.
It may be appropriate to do so when an employee verbally notifies you
that they need to take time off under the FMLA, but fails to provide medical
certification, and begins to take time off.
If they do not provide the medical certification in a timely matter you
reserve the right to issue a documented warning.  

2.      
Failure to follow the terms of the FMLA medical
certification

Employees often exceed the terms of their FMLA certifications, while
promising to have their medical providers amend the current terms to reflect
the new realities of their condition.
This leaves many frontline managers failing to bring the matter to the
attention of HR.  In many cases they find
out later that most of the absences should have counted as disciplinary
infractions.

3.      
Failure to engage in the ADA interactive process

Do
not rush anything that has to do with ADA reasonable accommodation
obligations.  You should always consult
with qualified legal counsel to ensure that you are in compliance, your
document is sound, and you have requested all the appropriate
documentation.  If the employee refuses
to engage in ADA interactive practice, you have the right to notify them in
writing of your expectations and their failure to comply with the laws.  Due to this interaction typically taking
place from a distance, you cannot and should not formally discipline the person
remotely.  Make sure your letter states
clearly the areas where the person is not in compliance with company
policy.  In every case you should give
yourself the advantage of documenting your findings to demonstrate the
individual’s lack of compliance and refusal to participate in the ADA
interactive process.

The FMLA and ADA were put in place to protect injured and
sick workers.  Like any good thing,
people will take it for granted and use it selfishly.  The thing you must do as an employer is
engage wisely with appropriate guidance.
Do not jump into legal action without knowing your rights.  At Converge HR Solutions we can help you
understand these laws and teach you how to affectively enforce them.  We are here to help you in any way you might
need. Please feel free to reach out to us at (610) 296-8550 or info@convergehrsolutions.com.

Read the full article here: http://bit.ly/2LPX6hE 

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