When it comes to compliance, sometimes a lack of manager training can be to blame for violations, Matt Morris, VP of FMLASource, ComPsych Corp., told attendees of a virtual session hosted Jan. 17 by the Disability Management Employer Coalition.
“We don’t hire managers to be FMLA experts,” Morris said. “We hire them because they are good people managers. They are good subject matter experts.”
But sometimes, managers’ “blindness or inaction” to the Family and Medical Leave Act and the Americans with Disabilities Act can lead to charges and large payouts, Morris explained.
A 2022 DMEC survey on ADA compliance found that companies find it more challenging to ensure managers are trained than to determine what type of ADA accommodation is needed. Morris attributed that to lack of interest, fewer HR resources and a lower HR budget, as well as more recent challenges like staffing shortages, new employees who haven’t been trained yet, workers who haven’t been trained in a while and the challenge of training remote workers.
Many managers have created liability just by their approach to the work, Morris said.
He jokingly identified six types of managerial offenders and offered tips on how to train those managers.
#1: The space case
The type: Knew or should have known there was a medical condition but didn’t act.
The training: Help managers see how a serious health condition is different from being sick. A serious health condition is an illness, injury or physical or mental condition that involves: inpatient care, a period of incapacity for more than 3 consecutive calendar days and continuing treatment, any period of incapacity for pregnancy or prenatal care, a chronic serious health condition or absences for treatment.
#2: The lazybones
The type: Knew of the leave but failed to redirect to the proper channels.
The training: Tell the manager to follow established policies.
#3: The worst responder
The type: Responded inappropriately to the request.
The training: Train the supervisor to react calmly and with empathy and consider recommending a practiced, standard response
#4: The jerk
The type: Made improper comments during the leave.
The training: Train managers to know they shouldn’t talk to co-workers and subordinates about the details of the leave, email anyone about the effect the leave will have or reference the leave in the employee’s performance review. Let them know they should keep opinions and emotions in check, focus on the objective information about the leave (start and end date, staffing in employee’s absence, etc.) and ask the employee how the organization can help.
#5: The badgerer
The type: Improperly contacted an employee during the leave.
The training: Let managers know they can’t condition continued employment on completing work while on FMLA leave or coerce or require an employee to work while on FMLA leave. Tell them they can contact an employee on FMLA leave to request a password to access a file or locate paperwork, request update on where a particular matter was left or to ask to pass on institutional knowledge. But a general rule is to leave the employee alone and to contact HR first.
#6: The troublemaker
The type: Tainted the termination decision.
The training: Be careful with termination decisions when leave is involved, and inform managers they can be sued themselves for inappropriate behavior. Tell the manager they should document what happened. That can be reviewed to reveal potential bullying or bad decisions. HR also can take the termination decision to an independent decision maker.