Bermuda Triangle Traps & Strategies
By Randall P. Sutton
SAALFELD GRIGGS PC
When dealing with employee absenteeism, employers need to carefully navigate the “Bermuda Triangle” of leave laws. This confusing and potentially costly place is created by the intersection of the Oregon and federal family leave laws, the Americans with Disabilities Act (“ ADA ”), and the workers’ compensation laws. An employee with frequent or unreliable absences will often have protection under these laws.
In helping employers deal with absenteeism issues over the years, here are a number of traps I have seen, and strategies for staying out of trouble:
Trap: Supervisors who are Unable to Spot Bermuda Triangle Issues. Managers and supervisors who don’t understand their obligations under the various leave laws may not spot “red flags” that would prompt them to seek input from human resources. To make matters worse, I often see performance reviews that specifically criticize the employee for taking absences that are legally protected, or an employer who has fired an employee for “poor attendance” without considering leave protections.
Solution: Give your managers and supervisors training to spot these issues. Make sure that employee performance reviews are reviewed by HR before being finalized and shown to the employee. Decisions to terminate for attendance must be reviewed by HR in all cases.
Trap: Fear of Dealing with Excessive Absenteeism. The opposite problem arises when an employer knows enough about the leave laws to be concerned, but takes no action at all out of fear of doing something wrong.
Solution: Trying to evaluate leave issues on an occasional or ad hoc basis can be nerve-wracking. Employers need to adopt clear policies that allow HR to step through the issue in a systematic way. The policies need to comply with the law, and treat employees consistently. The only way to effectively handle the variety of leave issues that can arise is through uniform notice requirements, medical verification procedures, and understandable paperwork.
Trap: Failing to Recognize that the Employee may have Protected Leave Rights. Suppose an employee calls in and says he is “feeling ill” and will be unable to come to work for an estimated five days. Many supervisors and managers may not recognize this as a family leave or ADA request.
Solution: Train your managers to understand the words that may trigger legal obligations. Under the family leave laws, notice is sufficient if the employee give facts that suggest the employee needs leave for a qualifying condition. Under the ADA , employees do not need to mention the phrase “reasonable accommodation” or the ADA . Any statement that suggests that the employee has a disability, and would like some help, may trigger ADA protections.
Trap: Failing to Document or Fully Dive Into the ADA Interactive Process. The EEOC requires that when an employer receives a request for reasonable accommodation, it must engage in an informal process to clarify the nature of the employee’s disability and potential reasonable accommodations. Employers often don’t understand the steps that need to be taken, and do a poor job of documenting their efforts.
Solution: An employer who carefully follows and documents the ADA interactive process will be in an excellent position to defend an ADA claim. Talk to the employee. Do web research. Give the employee a questionnaire for the doctor to complete. Document all of these efforts, so that you are able to show a jury that you did everything possible to accommodate the employee.
Trap: Turning an Injured or Sick Employee into a Disabled Employee. Under the ADA , a disabled individual may include someone who is regarded or perceived as having a disability. A manager who prevents an employee from doing his or her job out of fear of injury may give the employee ADA rights even though the employee is not actually disabled.
Solution: Do not go overboard in placing limits on what an employee with an impairment can or cannot do. Make sure your job descriptions accurately describe the physical and mental requirements of the job. Pre-employment physical agility tests and fitness-for-duty exams upon return to work can be effective tools so long as they are reasonable and closely tied to the job requirements.
Dealing with Bermuda Triangle issues is complicated and lawsuits can be costly to defend. Developing sound policies and obtaining training is a great place to start. Once an employee is terminated, it is difficult to mitigate any errors that were made in the process. Therefore, obtaining assistance of legal counsel can be invaluable before deciding to terminate an employee with excessive absenteeism.