Employees in Crisis: Is Time Off Required?
Employees’ lives at home almost always affect their time at work. It is not possible to realistically “compartmentalize” even with the best intentions. Therefore, issues like family challenges overseas, individual mental health issues, and household turmoil may all result in absences from work. Undoubtedly, being down a teammate can make getting everyday tasks done difficult.
From a legal perspective, many employers cannot simply terminate an employee who cannot come to work for personal/health-related or family reasons. In Virginia, employers with 50 or more employees likely have an obligation to review the crisis and assess whether it might qualify the employee for the Family Medical Leave Act (FMLA) of 1993. Keep the following in mind:
- FMLA requires employers to provide 12 weeks of unpaid leave (i.e., keeping an employee’s job open) for a qualifying reason. Qualifying reasons have been held to include mental health issues as well as family-related problems if they relate to a spouse, parent, or child.
- Whether or not an employee’s personal health condition rises to the level of “serious health condition” depends on the type of illness and related treatment. For example, an employee stating that they are experiencing “burnout” may likely be insufficient – however, burnout is oftentimes associated with depression and anxiety (both of which have been held to be serious health conditions). Employers should make FMLA policies – and related forms – clear and easy to access.
- Employers can request medical documentation surrounding the leave (including medical certification); however, any communication with a treating doctor (or therapist) must adhere to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
- The burden of proof is on the employer to justify why an employee is not reinstated after their 12 weeks of leave expires. The Department of Labor can file suit against employers who incorrectly administer FMLA.
Significantly, local jurisdictions such as the District of Columbia and Maryland have additional requirements for Family Medical Leave that expand compliance requirements to smaller employers. Further, obligations surrounding FMLA must be read in conjunction with requirements surrounding the Americans with Disabilities Act (ADA) and local corollaries. Employers are best served to regularly review their leave policies to ensure compliance with both federal and local requirements.
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