Best Employment Practices for Managing Employee Absences and Medical Leave
- Keep absenteeism and tardiness policies simple. Point systems and the FMLA rarely mix well, except for plaintiffs' attorneys, since one mischaracterized point can scuttle an employer's defense. Require employees to contact a specific person and not simply leave a message. Reduce the general policy and reporting requirements, along with any requirement for the use of paid leave, to writing.
- If attendance and tardiness emerge early, be very aggressive in use of progressive discipline. If the problem does not resolve itself quickly, simply terminate the employee, preferably within the ninety-day orientation or probationary period.
- Keep quick notes of attendance or tardiness incidents as they occur. Then, draft written memo for discussion with employee, giving details of past problems and future expectations for behavior.
- Train supervisors to simply be alert to potential medical issues with legal implications, not to be experts. Their job is to know when to call for help.
- Adopt a comprehensive, uniformly applied, written medical leave of absence policy which acts as an umbrella over all kinds of medical leave. This outside limitation should vary with organizational size (from perhaps twelve (12) weeks for a very small business to fifty-two (52) weeks for an organization with 100 employees). Make it clear that FMLA protections do not apply outside its time limits, and explain periodic reporting, certification, and return-to-duty examination requirements. Also ban moonlighting while on leave.
- Employees injured in the course and scope of employment are entitled to medical benefits, income replacement, and leaves of absence from work to recover. Never fire someone for making a claim for benefits. Remember that employees may reject appropriate light duty assignments without jeopardizing FMLA rights, though temporary total benefits may cease.
- Know your numbers. Employers with (20) or more pro rata employees must offer COBRA continuation coverage under a variety or circumstances, including when an employee ceases to work the requisite number of hours for eligibility under the health plan. Check health insurance policy terms to make sure company does not inadvertently have ineligible employees on the plan. Otherwise, the company may find itself on the receiving end of a detrimental reliance claim when the insurance company declines to pay claims.
- Have a comprehensive FMLA policy, but only if you actually need one. Only those employers with 50 or more employees (on each working day during 20 or more full work weeks in the current or preceding calendar year) at locations within a 75 mile radius must provide leave.
- Tennessee employers with more than 100 full-time employees at one work site must provide up to sixteen (16) weeks of parental leave (both genders) for birth or adoption and must include notice in next published handbook. Employees need to provide three (3) month notice of intent, subject to emergency waiver.
- Communicate, communicate, communicate with employees who are absent, have requested leave, are out on approved leave, or are nearing the expiration of approved leave. When in doubt, send the medical certification form. If there is a problem with payment for insurance benefits, send the required prior notices. When an employee's entitlement is near exhaustion, send a letter explaining the return to work process well in advance, and encourage them to call with questions.
- Keep the tone of all correspondence and internal communications courteous and appropriate, even when delivering a firm message to an employee.
- Track leave days and hours meticulously, retain employee notices, responses to requests, medical certifications, related correspondence, premium payment records, and records of disputes related to leave designations.