Wednesday Mar 08, 2023
Hot on the Hotline: Leaves of Absence
Description: In today's episode, we're tackling the intricate field of leaves of absence. We'll dive into the different types of leaves, common misconceptions, frequently asked questions, and helpful resources you can use to stay on top of best practices, rules and regulations regarding leaves of absence.
Key Takeaways:
- When it comes to leaves of absence, work with empathy, communicate well, have expectations laid out, have an agreement, and understand return dates.
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There's a misconception that you can't fire, terminate, discipline, or manage people's expectations when they're on leave. That is simply untrue. Those things can all be done if they're done fairly and objectively.
- MRA has many leaves of absence resources, including the hotline, toolkits, guides, trainings, and more!
Resources:
JAN - Job Accommodation Network
Supervisor and the Law Training
Let's Connect:
Guest LinkedIn Profile - Amy Whittenberger
Host LinkedIn Profile - Sophie Boler
Transcript:
Transcripts are computer generated -- not 100% accurate word-for-word.
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Hello everybody and welcome to 30 minute Thrive,
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your go-to podcast for anything and everything HR.
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Powered by MRA, the Management Association.
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Looking to stay on top of the ever-changing world of HR?
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MRA has got you covered.
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We'll be the first to tell you what's hot and what's not.
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I'm your host, Sophie Boler, and we are so glad you're here.
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Now it's time to thrive.
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Hello, everybody, and welcome to this episode of 30 Minute Thrive.
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We're happy you're here, and I'm excited to talk about what's hot on the hotline
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with Amy Whittenberger.
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She's our HR Business Advisor here at MRA.
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So she's the one to answer all of your HR Questions,
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and provide some good advice when you call on our HR hotline.
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Prior to joining MRA, Amy held multiple positions in HR
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and operations roles, and worked in the manufacturing
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and service industries, all small and large companies,
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as well as for-profit and not-for-profit companies.
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She's actually owned her own HR consulting business and taught
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HR courses at Cardinal Stritch University as well.
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So, I know you come with a lot of experience and knowledge
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today, so I'm excited that you're sharing it with us on the podcast today.
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I'm glad to be here.
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This is fun.
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Yeah, absolutely.
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Well, a recent episode was dedicated to MRA's most
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called upon topic on the hotline, which was FMLA.
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So let's kind of talk about the other side to that, and that's leaves of absence.
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So what other forms of leaves are there?
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So there are a couple more that we do need to talk about with our members
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when they do call in.
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You know, we have over 4000 members, a million employees,
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so we're bound to get calls regarding leaves that are needed.
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Some of those leaves look like our medical and personal leaves are policies
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a company might have in place of not having FMLA available.
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And there's the big one, which is ADA, where there is an accommodation
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in the form of leave.
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There are military leaves and leaves due to worker's compensation.
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And we also need to talk about any state-mandated paid leaves
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that are out there as well.
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And there are 11 states that have that right now.
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So a lot of different types going on.
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So, if a member were to call
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and say that they have an employee that needs to be out
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but they are not eligible for for FMLA; what really are their options?
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like where do they start?
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I think the first question I would ask them is,
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is if they do have a medical or personal leave policy on hand,
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if they do, obviously that's a great foundation to work with.
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You know, if I look at the policies, they tend to mirror FMLA.
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So the conversation can be almost the same as an FMLA, in terms of, you know,
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the eligibility requirements they might have for employees' forms
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to use, medical certifications to get, as well as, how do you handle
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benefits, pay in paying for benefits of all that employees out
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and then documenting everything.
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If they don't have a leave policy then we suggest that they use our sample.
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We have a great sample to use, and then to work from.
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And then, if they don't have that policy in place,
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really is talking about, you know,
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if this is the first time they might be doing it,
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what precedent might they be setting with this employee, for future decisions,
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or certainly look back, if they can, in different files
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where they might have had past practices so that they can be consistent
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in the future.
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So what else do companies really need to consider on this?
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And particularly to their policies in terms of leave?
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You know, I certainly bring into the conversation regarding PTO,
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you know, how is their PTO administered?
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How does it apply to leaves, required or not, in terms of taking time off,
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and then again looking at paid leave in terms of states?
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So the good news is that if you have a policy,
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where you provide equal amounts of leave in more than the state
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requires you to have to provide additional leave on top of that.
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So that you'd just be good to go.
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So at least get that out of the way.
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Okay. That makes sense.
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So you mentioned earlier that ADA was one of the big ones.
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So can we talk about that a little bit? Yes.
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So on that same call with any member that's calling in, we certainly would
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move them into accommodation in terms of a disability.
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ADA is required of any companies of more than 15 employees,
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and we would first suggest that they look in their toolkit,
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so we have a disability toolkit, that's exclusive to our members,
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very comprehensive in terms of information, state laws, DOL
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information, forms, letters to use,
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and an introduction to Jan, so everyone should know Jan.
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Jan is a resource through the DOL.
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stands for Job Accommodation Network and so it's a great use resource as well.
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Working through a leave when it comes to accommodation is similar
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to accommodations for any other disabilities.
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It's just having those questions regarding the leave,
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and the amount of leave that would be necessary.
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So diving a little bit deeper into ADA,
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what does a leave really look like under this?
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Yeah, so it could be a lot of different things,
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that the can really vary, you know so a couple of samples could be, you know,
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employee calls in on a Monday and said, hey, I broke my leg over the weekend,
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playing soccer, I don't have worker's comp.
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It's not a FMLA.
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I know I can't come to work because I'm in a cast,
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I won’t have my cast off for two weeks.
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What does that look like for them?
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It could be other issues such as, you know, a mental health issue.
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We know mental health issues are on the rise.
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So it could be that they need
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a modified schedule in order to attend therapy appointments.
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On that same vein, it could be people that have like
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a chronic diabetes situation and need treatments,
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or unfortunately people are dealing with cancer.
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They have chemotherapy that they have to attend.
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It could also be people that have a drug addiction,
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and they want to check themselves into like a 30 day stay treatment center.
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And could be of a newer disability, are going to be working with the service dog.
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So I need to go
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look at training with my dog to learn how to work through those issues.
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I didn’t know that was a part of it, it is, yes.
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And it can be things like you know
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I had a FMLA available to me for migraines.
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Migraines tend not to go away, so I'm still dealing with migraines,
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you know, how can we work through leave for that?
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And then, even, you know, a fairly common
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one is someone who's pregnant and not eligible for FMLA.
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And working through those issues, like,
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they might need time off for morning sickness, or things like that.
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Mm hmm.
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So a very big array. Yes.
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It is.
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ADA is far reaching and very complex.
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So, do employers have to accommodate employees
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for every single one of those situations, per se.
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So, no, each case is different.
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So essentially what a company does need to do, is
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they are required to engage in what's called an interactive process.
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That process is how and the employer and the employee works
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together to find out, you know, what is a reasonable accommodation.
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So this should be a conversation, it should not be a confrontation.
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You know, it really is about the employer and the employee come together
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with ideas, bring them to the table, come into agreement about what might work.
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You know, there could be situations where through those conversations, the employer
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finds out or determines that they can't accommodate with the employee is asking.
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And that's what we call an undue hardship.
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And there's very, you know, pretty specific reasons why you would choose.
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That,
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is a lengthy conversation.
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It shouldn't be made lightly.
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And if you're coming to that conclusion, certainly, you know,
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we suggest that you have a complete set of documentation
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regarding those conversations and why you made that decision.
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Kind of going off of that, and you just spoke a little bit about it.
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But what really are the factors used to determine
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whether an undue hardship exists?
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Mm hmm.
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So when it comes to leaves,
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it really is about what the employees are requesting in terms of, you know,
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how long they might need off, the frequency,
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they might need off, the length of time that they're requesting.
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A big piece of that is
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if the time they're requesting, is predictable or unpredictable.
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You know, we know in the workplace, that when people are calling sick,
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those unplanned times, get really hard to manage sometimes
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before the other staff to pick up the pieces and then cover that.
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So that really plays into making that decision in terms of undue hardship.
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Okay.
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So how does this really align with employers
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who ask for doctors notes when an employee's out
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for several days or calls than when they're injured outside of work?
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Yeah.
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So a lot of attendance policies out there will have a requirement
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for employers, when the employee is out for let's say three or more days,
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that they do bring back a doctor's note, clearing them to come back to work.
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The cautionary
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point here is that employers have to make sure
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that they're not requiring that the employees are 100% healed,
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because that is in direct conflict with ADA, asking us to make accommodations
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for people that need to meet the essential functions of the job.
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So in the beginning, we talked a little bit
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about the different types of leaves, So we should go back to that.
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And can you talk a little bit more about those other types
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that you kind of listed out in the first question.
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Yeah.
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So besides ADA, another common one I did mention is pregnancy leave.
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And so people that have a pregnancy but are qualified under a FMLA,
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they certainly have protections under Title seven and EEOC,
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and with the Pregnancy Discrimination Act,
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that prevents people from being discriminated against
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because of pregnancy issues.
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But then the ADA does come back into play, and that there is accommodations
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that should be made for people that are pregnant.
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Those things can be like additional breaks, longer breaks,
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maybe a change in schedule, or a change in shift, to deal with,
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you know, anything you know, including things like morning sickness.
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We've listed so many already,
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but are there any other ones that you want to cover too?
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Yeah, there's definitely one more part and one and I think we saved the best
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for last. I think that's military leaves.
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And so there is an act called the USERRA Act, which is the Uniformed
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Services, Employment and Reemployment Rights Act.
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And this ACT employee covers all employers.
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So it's available to anyone that's in a military situation.
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It's semi similar to a family in that it is providing
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leave away from the job with protection to come back
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and get your job, an equal job for equal pay
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and the military act is different though, in that you you're returning
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someone who is back to a positions called an escalated position.
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So that means you're returning the back to a position where they
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if they attained anything like increases
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promotions and increase in security,
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increase in benefits, etc., you turn them into that
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that role with those benefits, they would have a attained.
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Interesting.
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So it's a really nice feature.
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They shouldn't have to suffer because they served our country.
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Absolutely.
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So as we
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wrap up the episode today, I just kind of want to end with what
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other concerns or issues you hear that members
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bring up to you regarding leaves on the hotline?
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Yeah.
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So I think, you know, in the most part I think the leaves go quite well.
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You know, like anything else, if we work with empathy, communicate well, have
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expectations laid out, have an agreement, understand return dates.
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I think those can work well between employee, manager, and HR.
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But we know not all things work out well.
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And that's the kind of the calls we get to at the hotline is helping people
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when they're a little bit frustrated because things are going as expected.
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And when they said they would accommodate a leave.
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What we try to do in those situations, for example, there's a misconception
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out there that
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you can't
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fire, can't terminate, can't discipline,
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can't manage people's expectations when they're on leave.
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And that is simply untrue.
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And those things can be done if they're done fairly,
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objectively, you know, for business reasons,
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in that for any discriminatory reason, things can go wrong.
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If we're not communicating well, a good example of
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when you can terminate someone when they're on leave
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is if someone's on leave and unfortunately,
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a company has make a decision to do a restructuring
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and they're looking at limiting positions.
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If they have a role that's on the list,
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that role in that employee who's on leave that is in the role can be terminated.
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And no means would you have to bump someone
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as from losing their job because someone's on leave.
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Interesting.
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Yeah.
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Another situation that we think about is that when it comes
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to disciplining people, you know, all of our employees are expected to,
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you know, contribute to the company, have good attitudes,
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be professional, follow policies, follow you, call on procedures
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and whether or not that's when we need to step in and discipline
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in is performance
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a person who's on leave is not immune to that.
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They still need to do their job and perform well.
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And if a person's on leave and those discussions were happening
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before they left, the manager should be resuming
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those conversations as soon as the person leaves.
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Well, there's some good real life examples
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that a lot of employers can resonate with those.
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So are there any other resources that you would recommend to employers?
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I would.
00:13:49:09 - 00:13:52:04
So I did mention earlier our disability toolkit.
00:13:52:12 - 00:13:54:03
Those begin really comprehensive.
00:13:54:03 - 00:13:56:06
I think very helpful to use.
00:13:56:06 - 00:13:59:05
Obviously calling the hotline I think is a really important tool
00:13:59:05 - 00:14:02:13
because these are, you know, complex things that should be talked through.
00:14:02:21 - 00:14:04:12
Even if you think you understand.
00:14:04:12 - 00:14:07:05
And what you could be handling is always good to talk through it.
00:14:07:05 - 00:14:11:16
Make sure your hitting all the points, And then we do have a really great
00:14:11:16 - 00:14:15:10
training class that we offer that's called supervisor and the law.
00:14:16:09 - 00:14:19:20
It's in-person or virtual and it includes leaves.
00:14:20:05 - 00:14:22:02
It's available for our supervisors. Good.
00:14:22:02 - 00:14:25:14
We'll link from the show notes to for for our viewers.
00:14:26:09 - 00:14:28:14
Yeah. And I learned a lot. Sure.
00:14:28:19 - 00:14:30:12
You helped a lot of people out today.
00:14:30:12 - 00:14:32:08
So thank you for being our guest today.
00:14:32:08 - 00:14:35:04
In 30 minutes Thrive and really sharing your knowledge
00:14:35:04 - 00:14:38:15
and what you hear on this hot topic on the hotline.
00:14:39:05 - 00:14:43:13
So if you liked our chat and topic today, I encourage you to share this episode,
00:14:43:13 - 00:14:46:08
like give it a review, share it with your friends,
00:14:46:17 - 00:14:50:00
and consider joining MRA if you aren't a member already.
00:14:50:06 - 00:14:53:12
We have linked all resources in the show notes below for you,
00:14:53:21 - 00:14:56:02
so you should be all prepared for that.
00:14:56:02 - 00:15:00:03
And we've also linked Amy's LinkedIn profile in the show notes,
00:15:00:13 - 00:15:03:04
as well as MRA's hotline information.
00:15:03:04 - 00:15:07:08
So if you want to get in touch with her or get connected with the hotline,
00:15:07:19 - 00:15:11:18
we have that available for you in the show notes to thank you for tuning in today.
00:15:11:18 - 00:15:15:07
And thank you, Amy, for being a great guest and we will.
00:15:15:07 - 00:15:17:13
See you next week. That was fun. Thanks.