In Absence Management, ADA, FMLA

With a 26% increase in FMLA lawsuits in 2014, the fear of being exposed to a litigation case is real for a lot of employers. When faced with a litigation case it can be difficult to gather the facts of each case due to a lack of documentation. Some cases this year have gone in favor of the employer due to their diligent documentation.

In Gene Parks Vs. UPS Supply Chain Solutions; UPS was commended in court for their impressive detailed documentation. Gene Parks brought a case against UPS for FMLA retaliation about an ongoing neck injury. Parks had been granted up to twelve weeks of intermittent leave to deal with flare-ups. The court noted that the plaintiff had received multiple written warnings for inadequate performance, which indicated he would face termination if his work didn’t improve. Park’s current FMLA paperwork only authorized intermittent leave and indicated he could perform all essential job functions between flare-ups. Parks was advised to update his FMLA paperwork; otherwise, he would be accountable for his poor performance. Extra training opportunities were also offered to Parks, but he declined to take up the offer.

absence management best practices

The careful and extensive documentation of all interactions led to a victory in the courts for UPS. According to the law (§825.123), employees on intermittent FMLA leave are required to meet work requirements when they come to work unless otherwise indicated by a doctor in the FMLA certification.

In another recent case, Adams Vs. School District number 5, documentation proved that the employee had a performance issue before requesting FMLA leave. Andrew Adams, an assistant principal, was accused of physically accosting a student at his middle school. Child services investigated and cleared Adams. The school board also launched an investigation. While the investigation was ongoing Adams requested and was granted FMLA leave for stress, anxiety and high blood pressure. When he returned from leave, Adams claimed the principal verbally berated him. He requested and was granted a second leave of absence. When he returned, he claimed the principal verbally berated him again. Two weeks later he began a third leave of absence, which exhausted his FMLA entitlement.

While Adams was on leave, the school board required him to meet with an appointed doctor. Both Adams own doctor and the doctor appointed by the board determined that Adams should be moved to a lower stress environment, as the original incident had caused Adams to suffer from anxiety attacks. The board transferred Adam’s to a smaller school with a lower stress environment. According to the applicable labor contract, Adams’ salary would remain the same for the following two years, and would reduce by less than 1% afterward even though he was now at a smaller school.

Adams claimed that by the reprimands and transfer his employer interfered with his FMLA rights, discriminated against him in violation of the ADA and retaliated against him for exercising his rights under both the FMLA and ADA. The careful approach taken by the board and the documentation of the process led to the court rejecting Adams claims. According to §825.214 an employee is entitled to be reinstated to the same or equivalent position, but in this instance, the board was acting on the advice of the employee’s own doctor and the doctor appointed by the board.

About Adams reduced salary: the reduction would be less than 1 % of Adam’s salary, which stemmed from a bargaining agreement between the teachers union and the Board on the basis of school populations. The court decided that the Board had been more than reasonable in accommodating Adams, and the small pay reduction was fair according to the union contract.

These are just two examples of where employers were successfully able to implement absence management best practice and prove they had followed the proper procedure when dealing with their employees.

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