Category Archives: Medical

What is the Maximum Leave an Employee Can Take?

Sears Roebuck & Co. recently settled with the Equal Employment Opportunity Commission a class-action lawsuit for $6.2 million, the largest monetary award for a single Americans With Disabilities Act (“ADA”) suit in EEOC history.

The accusation against Sears was that the company discriminated against the disabled because it had an inflexible policy that allowed injured employees to take off of work for one year before they were automatically terminated for exhausting all leave. The EEOC said that this apparently neutral policy did not provide injured employees with reasonable accommodations in violation of their ADA rights.

With this suit, the EEOC is signaling an end to maximum leave policies. So if an employee has a serious health condition and uses all of his Family and Medical Leave but still cannot return to work, the employer now has to determine whether it would be a reasonable accommodation to allow the employee to miss more work. This is the EEOC position even though the courts have held that regular attendance is an essential function of most jobs and that indefinite, open-ended leave requests are not reasonable.

Texas courts have long held that maximum leave policies, neutrally applied regardless of whether the employee suffered an on-the-job injury, had a heart attack or wants to extend her maternity leave, are valid in Texas. The EEOC is undercutting those holdings in an attempt to impose a different standard (or no standard at all). From the settlement with Sears, the EEOC apparently wants all employers to follow these steps when an employee has been on leave and is unable to return at the prearranged time:

  • The employer must notify the employee 45 days in advance of the date her leave expires.
  • The employer must engage in the interactive process with the absent employee to determine whether part-time work, modified duties or a move to another position  would reasonably accommodate the employee and allow him to return to work.
  • If none of the previous options work, then the employer should consider offering additional leave beyond what the policy calls for.

What this means to even a small employer (15 or more names on the payroll) is that there will be no bright-line cutoff to an employee’s leave. If the EEOC’s position prevails, employers will have to hold all jobs open indefinitely for an employee who must take time off for an injury or illness.

At this point, my only advice is to wait and see how the courts react to the EEOC’s position. The Sears suit was a pretrial settlement, so we don’t know how this unreasonable position of the EEOC will hold up in court.

In Texas, it is still the law that an employer can enforce a neutral leave of absence policy by automatically terminating an employee who has exceeded the maximum leave offered. Just be aware that that law could change at any time if courts begin to side with the EEOC.

Genetic Information Now Protected By Law

In June 2008, the Genetic Information Nondiscrimination Act (GINA) was passed by Congress and signed into law by President Bush. The law prohibits discrimination based on genetic information about employees and applicants, their dependants, and any relatives out to the fourth-degree, such as great-grandparents. GINA stops employers from requesting, requiring or purchasing genetic information about an employee or his family members. The law goes into effect for employers beginning in November 2009.

Although many people have questioned why we needed a law when no one recognized that genetic discrimination was a problem, the federal government seemed to think that the law was necessary to allow genetic testing to begin to be used to its full potential in fighting disease. In fact, the law passed with only one “no” vote in the House and unanimously in the Senate.

How do you as an employer need to respond to GINA? Continue reading Genetic Information Now Protected By Law

Employing Mentally Disabled Employees

            It is disconcerting to consider the issues an employer faces with a mentally impaired employee.

            The Americans with Disabilities Act and the Texas Human Rights Act protect employees with mental impairments when they are employed by a company with at least 15 employees. But many employers are unprepared to legally interview, hire, employ and occasionally fire a mentally impaired employee.

            Generally the ADA protects employees who are qualified for the job but whose physical or mental impairments substantially limits major life activities such as concentrating or interacting with others. Employers must reasonably accommodate these disabled individuals if they can perform the essential functions of the job.

            Most employers I work with are willing to give mentally ill employees a fair chance and many mentally impaired employees are performing satisfactorily at all sorts of jobs.

Continue reading Employing Mentally Disabled Employees

Family and Medical Leave Act Mistakes

Although the law was adopted with much political posturing in August 1993, I have rarely mentioned the Family and Medical Leave Act (“FMLA”) in this column over the last ten years that I’ve been writing it for two reasons:

1.    It only affects employers who have 50 or more employees on the payroll; and

2.    It provides only unpaid leave, so very few employees can afford to take the 12 weeks off that the FMLA allows.

But I have decided it is time to readdress the FMLA if for no other reason than to combat the misinformation that seems to exist about it. If you are an employer that is affected by it, then you need a lot more knowledge than I can provide in this column, but this should act as an introduction for you.

Continue reading Family and Medical Leave Act Mistakes

Options For Compensating Injured Employees

             Bill is an employee of a small manufacturing business in Amarillo. His job involves operating heavy machinery. One day he injures his back at work. He stays at home for a couple of days. When the pain doesn’t get better, he goes to his family physician, who sends Bill to a specialist, who recommends surgery. Bill has the surgery and misses three months of work. Bill’s medical treatment and lost wages amount to more than $50,000.

            This scenario or a variation of it happens every day in the workplaces across the Panhandle. And employers dread it every day.

            On the job injuries raise very difficult questions for an employer. Obviously you as the employer want your employees taken care of properly before and after an injury. But what will that cost the employer? Will Bill sue his employer? What if Bill’s accident happened because he was negligent in not following the safety rules?

Continue reading Options For Compensating Injured Employees