Kristin Klein Wheaton, a partner in Goldberg Segalla’s Employment and Labor Practice Group, wrote a guest column for Buffalo Law Journal on handling employee leaves of absence — “a potential minefield of liability.”
“[T]here are several state and federal statutes that employers and HR teams must be familiar with when examining and considering employee leaves of absence, depending on factors such as their industry and size,” Kristin wrote. She went on to list these statues and regulations — spanning federal regulations like the Americans with Disabilities Act to state laws governing things like paid family leave and veteran status — and which could apply to a given company.
The employer’s difficulties will not end at determining the amount of time off the business’ policies — and state law — guarantee an employee, Kristin explained. A worker injured on the job, for example, will be entitled to a certain amount of compensated time off, as well as further accommodations after he or she returns, including modified duties, and more time off for medical appointments as needed.
Of course, at a certain point an employee’s requests for time off could become unreasonable and untenable for the employer. If the employer wishes to terminate and replace an employee on or requesting leave, the employer must demonstrate that giving the employee additional time off (beyond the employer’s policies) would constitute “undue hardship.” Kristin elaborated different factors employers should consider in such situations, dependent upon the size and industry of the employer and the reason an employee is requesting leave (there are different factors if, for example, an employee is injured, disabled, pregnant, or caring for children under 18).
Kristin concluded with general advice applicable to all employers: “First, establish consistency by centralizing decisions on leaves under a trained HR professional. Teach decision-makers to consult with counsel whenever there is a question on propriety of approving or denying leave. Finally, train all managers to recognize situations that should properly be referred to HR professionals.”