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Managing Medical Leaves and ADA Accommodations can be frustrating to handle! UGH!
Unfortunately, employees may be dishonest about their Medical Leaves, and in this situation, HR wanted information on how to respond in compliance with the regulations…
Below is a case study to help you learn how to respond to potential fraud and leave abuse.
Read the scenario below and see how we helped HR solve this challenge!
QUESTION:
Kendra has exhausted all her FMLA/CFRA leave (12 weeks) for Kendra’s own ongoing health condition.
Once FMLA/CFRA was exhausted, HR conducted good faith interactive meetings to determine if they could accommodate a reduced work schedule. HR confirmed they were able to accommodate for an additional 2 months, without an undue hardship, as per the doctor’s instructions. The employer transitioned Kendra from FMLA/CFRA to ADA/FEHA.
However, Kendra continued to miss work, even on those days she was scheduled, or came in late on the days she did work. Kendra’s leave request expires in 2 months, does Kendra remain eligible for all this continued leave, is it all job protected leave, even when she is violating the medical certificate and company policy? The employer feels Kendra is violating their excessive absence policy. What should they do?
ANSWER:
From what the employer indicated Kendra has been provided a reduced work schedule as an accommodation – for a medical condition that meets the criteria of a disability under the ADA/FEHA.
Kendra was provided protection for a “reduced work schedule” under FMLA/CFRA. And Kendra was provided a reduced work schedule as an accommodation under ADA/FEHA, once the FMLA/CFRA was exhausted.
However, Kendra is not complying with the agreed upon accommodation – there was no request for on-going, as needed, unpredictable leave as an accommodation under the ADA/FEHA, Kendra just requested the reduced work schedule.
It is important that Kendra provide clarification from her medical provider verifying the use of her current leave. In other words, request Kendra “cure” her medical certificate. Kendra is exceeding the number of agreed upon days off per week off and she is violating the attendance policy when she is working.
If Kendra is not able to cure the medical certificate and confirm the need to modify the accommodation under the ADA, for additional leave days and the unpredictable start time, HR should apply the company attendance policy in the same manner it applies to all other employees.
However, if Kendra cures the medical certificate, there will be a need to re-engage in the Good Faith Interactive process and confirm if it is an Undue Hardship or an unreasonable request, to provide additional leave days and an unpredictable start time as an accommodation. It is very important to apply a systematic process when conducting the Undue Hardship analysis to assure you are in compliance with the ADA/FEHA, and the employee is in fact a Qualified Individual with a Disability and is expected to be able to perform the essential functions of the job with the accommodation.
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Leave Management Solutions also has all the forms, checklist, flowcharts, directions and resources you need to respond to and designate CFRA leave (and ADA/FEAH and PDL with or without workers’ compensation) in your organization. We have been working with FMLA and ADA for over 27 years and provide expert testimony in this area. By HR for HR, let us be the experts so you dont have to. We will also be conducting a deep dive 3 – 1/2 day training, May 5-7, to specifically review simple, step by step strategies for implementing the new CFRA, specifically if you are a small employer and have never been challenged with this compliance requirement before.
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