By A. Kevin Troutman, Fisher Phillips
Employers’ anecdotal comments and practical experiences show that management of employee leaves is still one of the greatest challenges human resources and legal professionals face, especially in the healthcare industry. The 24/7 service demand and relatively short supply of qualified, available workers make this challenge even greater.
A typical scenario involves the manager of a busy department, where the workload is heavy and two or more employees are on leave simultaneously. The well-intentioned manager has to balance the needs of patients, the employees who are caring for them and those employees who are on leave. While qualified PRN or other supplemental staffing sources are also being pushed to the limit, the manager’s head nearly explodes when someone shows her a picture of an employee who is on Family and Medical Leave (FMLA) lounging poolside in Las Vegas. The manager’s immediate reaction is to address this “obvious” abuse of FMLA leave by terminating the worker’s employment.
In what became a signature example of reactionary decision-making in the face of apparent leave abuse, the 7th Circuit Court of Appeals evaluated almost exactly the same facts a few years ago, finding that the employee’s leave was indeed protected and that her termination was illegal. These kinds of situations continue to make leave management an especially difficult challenge for employers.
In the case, the employee’s mother was on a trip sponsored by a group that granted last wishes to terminally ill patients. The employee joined her mother in Las Vegas to provide physical and psychological care during the trip. The court found that the employee had indeed assisted her mother during this time and that the trip should have been permitted under the FMLA’s expansive definition of “care.” It further observed that the FMLA contains no applicable geographic restrictions.
Thus, this decision dramatically illustrated the importance of gathering and evaluating all relevant facts before making a disciplinary decision. This is true in most situations, but especially those involving the FMLA or Americans with Disabilities Act (ADA), which requires an individualized assessment of each set of facts.
These situations can be especially troublesome in the healthcare industry, where many managers have clinical training that may tempt them to evaluate the merits of an FMLA leave or ADA accommodation request on their own. Under the law, however, managers’ access to confidential information regarding an employee’s diagnosis and condition are strictly protected. Therefore, managers must confer with HR and the legal department about their questions. They cannot unilaterally question or challenge the reasons for the employee’s request, especially when a qualified provider has diagnosed the employee’s condition.
This does not mean that an employer is powerless to hold workers accountable for “gaming the system.” An employer can require accountability. After all, leave abuse can and does happen on occasion. But the process of asking questions, gathering information and assessing the overall facts must be done in a disciplined fashion, spearheaded by HR or Legal. Breakdowns and snap decisions can and do expose the hospital to liability.
In another case, a situation went off the rails when an employer did not grant FMLA protection for an employee to go to the hospital to consult with his sister and caregivers about their mother’s end-of-life care decisions. A court found that this time off was indeed covered by the FMLA.
FMLA/ADA issues can crop up unexpectedly in a variety of situations, which is the reason why even the most seemingly outlandish absences or accommodation requests require employers to follow a methodical information-gathering, review and determination process. Managers must also keep in mind that an employee is not required to explicitly ask for an “accommodation” in order to put the employer on notice of its possible legal obligation. Hospitals must sometimes recognize the need for accommodation or FMLA leave, even in the absence of a request.
The employer’s duty can arise when it knows, or has reason to know, that an employee is experiencing workplace problems or absences because of a disability or a probable FMLA-covered condition. Some examples are illustrative:
• When an employee needed time off from work for a reported “bad sunburn,” it turned out that she had sun poisoning, her face was swollen, and her absence was at least arguably covered by the FMLA.
• In a more bizarre situation, an employee was reportedly concerned that they had contracted a “monkey disease” by viewing a sick animal at the zoo. Regardless of how such facts ultimately play out, this is the type of situation in which it would be advisable to ask the employee whether he or she has seen a doctor and, if so, to provide supporting documentation, to determine whether the employee indeed has a qualifying medical condition.
• Since various mental health conditions also constitute disabilities, employers must be especially vigilant in situations where an employee’s alertness, hypersensitivity, mood swings or apparent confusion become issues in the workplace. While employers are never required to tolerate violent behavior at work, they may have to consider accommodations that would reduce the effects of an employee’s mental health condition.
While no single “magic answer” will resolve every scenario, it is imperative for employers to avoid jumping to conclusions before obtaining sufficient information to make a reasonable assessment. When potential FMLA or ADA situations may exist, employee health or HR representatives should seek medical documentation that is relevant to the circumstances.
Under the FMLA and especially under the ADA, the process of interactively conferring with the employee and considering alternatives is often just as important as the employer’s ultimate decision. Stated another way, a decision that may pass muster when supported by evidence of meaningful communication and thoughtful analysis may not withstand scrutiny when viewed in isolation, without supporting documentation. In these situations, the word “obvious” should be stricken from managers’ vocabulary.