No one wants to lose a good employee. In fact, retaining talented and effective employees is much of what it means to engage in "strategic HR"—one of today’s management buzzwords.
Compensation, advancement opportunities, and professional development have always been key to keeping the grass green and employees loyal. But increasingly, those traditional means of incentivizing workers are insufficient. Younger employers in particular are demanding flexible policies that allow them to better balance the demands of work and personal life.
Just this year, the EEOC has joined this cause, mandating that employers embrace flexibility in one area where they have always been able to be strict: attendance policies. Using the expanded Americans with Disabilities Act as its legal basis, the EEOC has begun a campaign to require employers to provide leave for employees with certain health problems.
First, some background.
The Family and Medical Leave Act (as well as isolated state statutes of similar purpose) requires that employers of a certain size allow an employee with a serious health condition to have up to 12 weeks of unpaid leave in a year. As any HR specialist will attest, that simple principle is convoluted with myriad regulations. As a mere sample: the employer must have 50 employees within 75 miles of the employee’s work site; the employee must have worked for 12 months (though not consecutively) and for 1,250 hours in the prior 12 months; the leave may be taken intermittently down to the smallest unit of time the employer uses for pay purposes. And on and on.
Employers operating under collective bargaining agreements might well have contractual obligations to allow employees greater leave, depending on deals struck with their unions. Those duties, like the FMLA, would require holding open a job for a certain period of time despite an employees’ health condition.
Though the FMLA might be difficult to administer and a collective bargain agreement might include distasteful concessions, employers could know that, as long as they gave all the leave arguably required, they would be allowed to release the employee who proved unable to return to work when the leave rights expired. The FMLA and a contract would provide a certain bright-line.
Enter the ADA and the EEOC. Amendments passed by Congress in 2008 and signed by President Bush greatly expanded the ADA to the point that it protects anyone with a substantial limitation on most any bodily function. If a condition left untreated would affect someone’s health in a limiting way, that person is probably protected now under the ADA, even if readily available treatment would remedy the problem. Thus, many, many more people fall within the ADA today.
Since 2008, the EEOC has studied and received public comment on what the 2008 amendments should mean in practice. Finally, this year, the Commission has issued regulations explaining how it will interpret the more expansive definition of disability and what it will require of employers in turn. Most significantly, the EEOC’s 2011 regulations say that employers must consider additional time away from work as a possible reasonable accommodation of someone’s disability.
The idea of granting some time off to deal with a hardship sounds reasonable—and it is the kind of thing employers often voluntarily do for good employees. What the EEOC has done, though, is to mandate it for good and bad employees alike and to put legal teeth behind it.
Now, if an employee cannot come to work, even after all vacation, sick days and FMLA leave have expired, an employer must examine a few more key questions before deciding what to do: is the employee disabled; how much more leave would enable the employee to return; what would the hardship be to the organization in continuing to hold the employee’s job for him; and would a court or the EEOC would find that hardship reasonable to impose or unduly burdensome.
Not only are the facts extremely difficult to gather—what is the employee’s true condition, what is an accurately projected return date, what are the company’s actual costs in waiting—but the legal conclusions are equally unpredictable because the EEOC has not said how long is too long to wait and how much is too much to suffer in costs. According to the Commission, and understandably, the answers will vary from job to job and workplace to workplace. What Microsoft can tolerate will differ from what the local web designer can accept. The wait for a manufacturing line worker might be longer than the wait for a sales manager.
As with much in employment law, what to do depends on the people involved.
Behind the uncertainties, though, is this basic point: the EEOC wants employers to keep employees. Until federal courts begin to work their way through cases and interpret some actual workplace scenarios, employers are best served to take a conservative approach whenever an employee can project a return date that is not months down the road.
After all, perhaps a by-product will be more loyal employees.
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