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Sequencing Medical and Disability Leave

FMLA, ADA, Disability and PTO (Paid Time Off) leaves require proper sequencing in avoidance of fiscal waste, unlawful activity and costly confusion.  While there are certain acceptable conditions under which paid leave can be substituted for FMLA, HRS recommends sequencing leave with clear consistent policies.  As it is unlawful to penalize an employee in any way based upon his or her proper execution of legal rights or benefits, keep it clean and risk free. Beyond PTO and where permitted by law, leave concurrency should be clearly stated and practiced with consistency.

In terms of medical and disability leave, employers are strictly accountable to FMLA and ADA according to company size, location and unique definition of “undue hardship.”  Employers must create a distinctive policy whereby employee receipt of disability benefits does not necessarily constitute approved disability leave.  Consider the elective disability policies available.  While these may be a smart purchase for employees, employers must be consistent with available leave and need not recognize these private purchases as employer mandates. A few sentences in the employee handbook and a consistent practice accomplish these goals quite nicely.  Workers’ compensation lost time is treated in accordance with FMLA, ADA, DOL, EEOC and company leave policies. 
 
Customize a PTO policy which addresses your company’s unique needs. Consider benefits for using PTO during company preferred times such as periods of less activity. Contemplate blackouts for PTO during bottleneck activities. Take into account the minimum and maximum length of absence preferable, and structure a written policy in advance accordingly. Having created a custom policy that appropriately addresses unique company wishes, many employers will find value in requesting use of PTO prior to any unpaid leaves. Remember that legally entitled leaves require certification. That is, when you have a finite amount of leave certified, this needs not extend the total leave amount, and everyone wins. Most employers will find the following sequence most beneficial: PTO >> FMLA >> ADA Extension (if applicable) >> Company Elected Medical or Disability Leave (if any).  ADA extensions are still being shaped by case precedents, whereby 30 days beyond FMLA was recently determined a maximum.

Any company elected leave not legally mandated should be titled as such, creating clear distinction as to what is legally mandated and monitored and what is not. It is most definitely a lost opportunity to create company elective leave without proudly announcing this generosity of this benefit to treasured team members.  This announcement can optimize engagement and employer brand equity.
 
The legal compliance professionals at HRS are on call for policy establishment and implementation guidance.  Please consider us a valuable resource to any of the topics mentioned herein.  


Jessica Ollenburg - Monday, July 30, 2012