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Maintaining ADA/ADAAA compliance when leave is involved

This blog article has been republished as originally run in Human Resource Executive magazine’s November 2015 issue

As we talk with employers around the country, we hear many similar concerns. “Managing leave as an accommodation has become challenging…” “Intermittent leave is a challenge for us…” Does this sound familiar?

When it comes to managing leave and maintaining compliance as it intersects with other benefits – including the Americans with Disabilities Act/ADA Amendments Act (ADA/ADAAA), Family Medical Leave Act (FMLA) and workers’ compensation – the same questions come up again and again. Leave, including intermittent leave, as an accommodation has become much more common since ADAAA took effect in 2009, and compliance challenges will continue to be a hot topic for employers in 2016.

Approach ADA concerns in the spirit of collaboration and think creatively to find accommodations

ADA/ADAAA was designed to protect disabled individuals and aid them in performing the essential functions of a job. An employee does not have to ask for ADA accommodation. If you see an employee impacted by a disabling condition, for example if they have been away under FMLA or a workers’ compensation claim and have difficulty returning to full capacity, it is important to start the interactive process and discuss possible accommodations.

Leave as an accommodation, even on an intermittent basis, is acceptable under ADA/ADAAA provisions and is something many employers explore; however, it may not always be the most reasonable or beneficial option for employer or employee. Scheduling can become a challenge, particularly with intermittent leave. We’re seeing leave used as an extension of FMLA; an employee could potentially be eligible for leave beyond their 12 weeks of federal entitlement. Is leave as an accommodation keeping employees from realizing the benefits of remaining in a productive work environment? What creative solutions may be available to minimize time away from work?

It’s important to remember, even under requirements for reasonable accommodations, an employee must still be able to complete essential job functions and maintain performance levels – lowering standards is not an ADA/ADAAA requirement. Leave as an accommodation may fit within these guidelines; determination should be made based on the job duties of the position and impact on the business. Other options may also be effective that would help the employee return or remain at work – possibly alternative scheduling, telecommuting or changing work locations. Some employers offer job search to help find alternative positions that will accommodate employees if they are no longer able to perform their essential duties.

While legal compliance is of utmost concern, flexibility and advocacy can go a long way toward maintaining employee morale and workplace productivity. Ensure employees are heard, that their input is considered and, ultimately, they know you care about them and want to help.

When considering leave as part of the ADA/ADAAA process, focus on compliance and advocacy

As human resources and risk professionals, it is your responsibility to ensure compliance – for the protection of your workers and your enterprise.

  • Establish consistent procedures that trigger the interactive process.
  • Educate your leaders so they know when to get assistance from ADA resource(s).
  • Review job descriptions to ensure essential functions are detailed – consider whether regular attendance is an essential function.
  • Document within a centralized information management platform – your best means for implementing consistent procedure and also providing a strong defense in case of legal challenges.

Focus on taking care of employees and getting them back to meaningful work and a full life.

  • Educate employees about the ADA/ADAAA process and its intent – most employees don’t understand the differences in ADA, FMLA, STD, LTD; frustration overall can cast a negative light on a process intended for good.
  • Impact return to work and productivity – rather than relying on leave whenever it is suggested as an accommodation, what other solutions can be proposed? Is work from home, even intermittently, an option? Can other workplace modifications be considered?

Where can employers turn for assistance?

Sedgwick has many years of experience ensuring employer ADA/ADAAA compliance for clients. We look at situations from an overall absence management perspective – considering FMLA entitlements, ADA/ADAAA requirements, available return to work options. Our specialists facilitate the interactive process so our clients can focus on making informed, thorough decisions about what accommodations are reasonable for their work environment. We make compliance an integral part of the program.

Even if Sedgwick is not your partner, we offer additional resources for employers, answering many questions that may arise at the intersection of ADA/ADAAA, leave and other benefits. Take a look and contact us for more information.

Stephanie Simpson, SVP, Disability & Absence Management Practice & Compliance

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