Our HR experts answer frequently asked employee benefits and disability questions.  For more frequently asked questions, check out our other faq pages on employee compensation and HR administration.

Employee Benefits & Disability FAQ’s

Question: Can an employee returning from FMLA leave be placed in a different role with the same level of pay?

Answer: Upon return from a leave taken pursuant to the Family and Medical Leave Act (FMLA), an employee must be restored to his or her original job or to an equivalent job with the same pay, benefits, and other terms and conditions of employment. The new position must involve the same or substantially similar duties and responsibilities and require substantially equivalent skill, effort, responsibility and authority in order to be considered a truly equivalent position.

We recommend that employees be reinstated to the same exact position whenever possible as courts have generally been reluctant to find different positions as being equivalent if there is any change in reporting relationship, skills used on the job, status of the position, or basic duties. It can be very difficult to find alternative positions that will meet all the requirements of being equivalent.

The same pay alone in a new role would be a different position. Additionally, even when the base pay is the same, according to the Department of Labor (the agency that enforces the FMLA), equivalent pay includes the same or equivalent pay premiums, such as shift differentials, and the same opportunity for overtime as the job held prior to FMLA leave.

One exception to this is when the position no longer exits due to unrelated factors. In other words, an employee on FMLA leave, is not protected from actions that would have affected him or her if the employee was not on FMLA leave. While position changes due to unrelated restructuring are allowed under the FMLA, these situations do increase the risk of liability should the employee make a claim of retaliation, as the employer will bear the burden of proving that the changes were completely unrelated to the FMLA leave.

We recommend that employers either take this chance to cross train existing employees or hire temporary staff to fill the role of the worker on FMLA leave. In any case, the employer should notify the replacement worker that the change is temporary and will end upon return of the employee on FMLA leave.

Question: Our employees are mostly remote workers. Do we have to provide their workstation desk and chair or are the employees responsible for this equipment?

Answer: You can provide this equipment for your remote employees, but you usually do not have to do so.

In some states (such as California), an employer is required either to provide employees with the tools and items necessary to complete the job or to reimburse employees for these expenses. However, workstation equipment like desks and chairs is usually not included in this category of necessary items.

The advantage of providing such equipment is that employees may be happier with their work situation and might use company equipment in a safer manner than they would their own. The disadvantage is shipping costs and the potential for waste. Some employees may not want this equipment in their homes, already having their own preferred workstation.

In nearly every telework arrangement I have been involved in or analyzed, the employee provided their own workstation. The bottom line is that employees can often work wherever they prefer: a home office, their kitchen, the local coffee shop. The place an employee does their work is really up to them. In addition, OHSA has stated that they have no intention to inspect employees’ homes for workplace safety. The safety of an employee’s home workstation is their own personal responsibility.

There is one exception, however. An employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job. In such cases, you would consider it like any other ADA request. Providing a back support cushion or computer stand, for example, would probably not be an undue hardship, and therefore something you should do.

Question: My employee told me that he is having dizzy spells that make it impossible to do some of his job duties. What steps should I take now?

Answer: As a company with 15 or more employees, you are subject to the Americans with Disabilities Act (ADA). Under the ADA, employers must provide reasonable job accommodations for workers with disabilities unless such accommodations would impose an undue hardship on the business. When an employee makes you aware of a potential medical condition, you should begin the ADA interactive process. Simply put, the ADA interactive process is a series of conversations or communications between the employer and the employee to help the parties assess and address an employee’s need for a reasonable accommodation under the ADA in order to continue to perform the essential functions of the job.

Open a dialogue with the employee as soon as possible about what accommodations he may need. Don’t make any promises about what you can do at this point. This is an opportunity for you to collect the information you will need to decide what the company can and cannot reasonably provide. As part of the interactive process, you should:

  • Analyze the specific job position involved to determine its purpose and essential job functions;
  • Identify the employee’s precise limitations and collect supporting medical documentation; and
  • Explore the possible accommodations and assess whether those accommodations would be effective and reasonable.

For this situation, you will likely want to look into whether the duties that the employee cannot do are essential to his job. If they are, you will want to explore possible accommodations such as finding a way that he could sit to complete the tasks (if standing increases the dizziness, for example). The employee himself may have some suggestions for a reasonable accommodation.

Document your discussions with this employee and any actions that you take and why. Having records of your good faith efforts to accommodate the employee may provide you with protection should you ever be challenged in regards to your actions concerning this employee.

Ultimately, your goal under the ADA is to find a way for the disabled employee to continue to contribute to your operations while accommodating the restrictions resulting from his disability. There may be situations where the only accommodations possible would cause significant difficulty or expense for the business. In those cases, there may be no way for the employee to continue to work at your company. Any consideration of termination, however, should be reserved until after you have completed the ADA interactive process.

Question: We received an application from someone who has worked for our grocery store in the past. A few of our current employees tell me that this applicant has been in and out of the hospital lately due to severe back pain. Is this something we can ask him about during the interview?

Answer: According to the Americans with Disabilities Act (ADA), an organization may not ask an applicant about any disabilities prior to making at least a conditional offer of employment. The only disability-related question you may ask pre-hire is, “Are you able to perform the essential functions of this job?” or “Are you able to perform the job duties that I have described to you?” In order to get the most useful answer to this question, you should ensure that applicants have been informed of what the essential functions of the position are through a detailed job posting, explanation during the interview, or, as a best practice, both.

In this case, the alleged back pain may no longer be troubling the applicant or, if it’s still a problem, it may be something you can reasonably accommodate. Either way, you shouldn’t ask about it. If the applicant believes he will need an accommodation, it’s his responsibility to inform you of the disability and request an accommodation. If you were to ask about the back pain or hospital visits and then not hire the applicant, he could claim that your decision was based on his disability, or was made because you regarded him as disabled, and was therefore unlawful discrimination. Additionally, you should not solicit any further information about the applicant’s condition from your current employees – any information that would be illegal to gather from him pre-offer is also illegal to gather from other sources.If you decide to hire the applicant and extend a job offer, then you could request a medical examination or inquire about disabilities. However, you should do this only if you will be asking the same of all other employees hired into that type of position.

Question: We have an employee who is no longer physically capable of performing her job. We have tried to accommodate her by giving her extra time off and reducing her hours from full-time to part-time. Unfortunately, her condition has not improved and it’s affecting her overall job performance. We are at the point where we may need to let her go. Is there anything else we need to do?

Answer: The first thing you’ll want to do is make sure that you’ve gone through the interactive process under the Americans with Disabilities Act (ADA) and have determined whether there is a reasonable accommodation that can enable your employee to work. The ADA interactive process is a series of conversations or communications between the employer and the employee. It’s designed help the parties assess and address the employee’s need for a reasonable accommodation and ability to perform the essential functions of the job.

An employer must provide a reasonable accommodation unless it causes the employer an undue hardship. What the accommodation is and whether there might be an undue hardship is case-specific to each situation. An undue hardship defense can be challenged, though, so we recommend that all steps of the interactive process and any accommodations you make are documented internally for your records.

Please keep in mind that an unpaid leave of absence can be considered a reasonable accommodation, if it is likely to return the employee to work. Additionally, the ADA can require leaves beyond the 12 weeks required under the Family Medical Leave Act (FMLA) as a reasonable accommodation. You don’t have to accommodate an indefinite leave of absence, however.

In the event that you haven’t involved the employee’s medical provider in determining whether there are possible reasonable accommodations, I recommend that you provide the employee with a medical inquiry form along with her job description to give to her doctor.

Once you have more information from the doctor about recommended accommodations, you will be able to evaluate whether you can provide the reasonable accommodation, suggest an alternative, or deny the requested accommodation as an undue hardship as detailed below.

The first two options above are the safest solution and should be tried first as they show good faith on the part of the employer. If the employee wants an accommodation such as an amount of leave beyond what you can reasonably provide, you may need to consider a termination based on an undue hardship claim. However, assuming a medical provider certifies your employee has a disability under the ADA, I would advise proceeding with caution if you assert that the leave is an undue hardship, and be aware that this may contain some level of risk to the employer. To be on the safe side, you may wish to have an employment attorney review your undue hardship defense.

Question: An employee of ours has gone on FMLA leave to care for a family member, and she asked us via email to tell her co-workers the reason she’s taking time off. Is this okay?

Answer: In general, when an employee is out, I recommend informing coworkers only that the employee is on a leave of absence. The reasons for the leave are not any of the coworkers’ business, and the employee might not want the reasons known by others. Moreover, sick leave, family leave, and disability laws often specifically protect this information.

In this case, since this employee has specifically asked you to inform the other employees that she will be out on a “family care” leave, and you have this request from the employee in writing, you should be fine sharing this information. In the absence of any such written request from an employee, however, I would recommend defaulting to stating only that an employee is off work on a leave of absence, letting the employee share additional information at their discretion.

Question: What happens if an employee’s FMLA time has run out, but they say they’re not able to return to work?

Answer: Even if an employee has exhausted their FMLA leave for the year, their condition may fall under the Americans with Disabilities Act (ADA). Under the ADA, a disabled employee is one who has a physical or mental impairment that substantially limits one or more major life activities such as seeing, hearing, speaking, walking, performing manual tasks, and working. If the employee’s condition is covered by the ADA, they would be entitled to continued job protection while on a leave of absence, so long as their leave did not create an undue hardship for the company.

If the employee contacts you about needing an extension of the leave, you should engage in the ADA interactive process to determine if their condition makes them eligible for ADA leave and how much additional time they would need before returning. As part of the interactive process, you may request medical documentation supporting an accommodation request. You can then look at whether the additional leave is something you can grant without it causing an undue hardship. Be aware, however, that “undue hardship” is a high bar to pass.

You could also choose to offer additional leave to an employee even if their condition did not require coverage under the ADA (employers occasionally want to do this with top performers). But keep in mind that doing this would set a precedent for future requests, so it should be carefully considered.

Answers provided by:

hr expertAngela, PHR:

Angela has extensive experience in HR, conflict management and employee relations. She spent several years working as a high volume (and full cycle) recruiter for a large multi-channel retailer. Angela earned her B.A. in English Literature and Criminology from the University of South Florida. and also holds a paralegal certification from Saint Petersburg College.

hr expertsEmily, PHR

Emily joins the team with over six years of experience in HR, primarily in the healthcare and hospitality industries. She also spent a year running a non-profit. She graduated college with degrees in Music and Entrepreneurial Business, and her passion for helping and working alongside people led her to the field of HR. In her free time, Emily enjoys traveling and home brewing with her husband.

hr expertsMargaret, PHR, SHRM-CP

Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.

hr expertsMonica, SPHR, SHRM-CP

Monica has held roles as an HR Generalist and Payroll and Benefits manager at a large ski resort, providing HR guidance to more than 500 employees. She also has HR experience in the healthcare field and the non-profit world. Monica holds a Bachelor of Science degree from Linfield College.

 

hr expertsKara, JD, SPHR

Kara practiced employment and bankruptcy law for five years before joining us, and was a Human Resources Generalist at an architecture and engineering firm for several years prior to that. As an attorney she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.

hr expertsOphelia, SPHR, GPHR, SHRM-SCP

Ophelia has held HR roles in the financial services, healthcare, IT, real estate, and telecommunications industries. She holds a Bachelor of Arts degree in Sociology and a Masters of Business Administration (MBA) degree with a concentration in Human Resources from Willamette University. A member of SHRM since 2008, Ophelia currently serves as the Director of College Relations for a regional Human Resources Management Association.

hr expertsEric, SPHR, SHRM-SCP

Eric has extensive experience in HR, management, and training. He has held several senior HRpositions, including as the HR & Operations Manager for an award-winning interactive marketing agency and as HR Director for a national law firm. Eric graduated with a Bachelor’s of Science in Economics from the University of Oregon with a minor in Business Administration.

hr expertsRussell, SPHR, SHRM-SCP

Russell has over 13 years of union and non-union human resources experience, during 10 of which he has held regional and director level HR roles in the healthcare, hospitality, property management, and engineering industries. He holds a BA from Indiana University and is an HR Specialist honor graduate from the US Army’s Adjutant General School. Russell has been a member of SHRM since 2004 and has worked as a pro bono HR Consultant, supporting small non-profit organizations.

hr expertsRebecca, SPHR

Rebecca has a diverse background in Human Resources and Training Management from the temporary staffing and insurance industries. She has served in a variety of HR management positions, and enjoys translating complex regulatory language into “real world” scenarios, allowing her clients to quickly utilize the content in their daily activities.

hr expertSarah, PHR, SHRM-CP

Sarah has extensive Human Resources experience in the legal, software, security and property preservation industries. She has a Business Communications degree from Villa Julie College (now Stevenson University) and a master’s certificate in Human Resources Management and a Strategic Organizational Leadership certification from Villa Nova University. Sarah is also a member of the National Society of Human Resources Management and has managed the HR function for small startup companies to mid-sized/large organizations.

kyle hr expertKyle, PHR:

Kyle joined us after six years of freelance writing and editing. He has worked with book publishers, educational institutions, magazines, news and opinion websites, successful business leaders, and non-profit organizations. His book, a memoir about grief and hope, was published by Loyola Press in 2013.

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