Too many of us, small business enterprises, do not fully comprehend the newer regulations that govern our workplaces.
In particular, these two sets of laws, the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA) can end up costing some of us significant time and funds for failing to adhere to their regulations.
These regs deal with the health of our employees of those of a family member. They involve timelines and provisions with which we must comply- either by providing notice of employee rights or the provisioning of various required forms.
Here’s one I missed by a smidge. The FMLA provides up to 12 weeks of unpaid leave for the illness of an employee or a family member. Oh- and that means we must react withing 5 days of being notified by an employee that they may be entitled to FMLA leave. There is no form the employee must provide or specific wording- they simply have to mention it to us and the provisions begin to apply.
Yeah, that doesn’t mean we can consider what they said to have been a casual share. Because it is incumbent upon us to ensure that we maintain compliance with the law.
The ADA provisions may be slightly more onerous. After all, there are folks like me that are working well beyond the age of retirement- and that could mean these older employees have medical issues that are covered by the law. What medical conditions obtain that qualify as a “disability”? In essence, any medical impairment that is more than temporary (like me recovering from necrotizing fasciitis) can be the debilitating malady that triggers ADA provisions. But, that is only true if that condition affects one’s ability to perform the “essential functions: of their jobs.
Well, not really. Disability covers things like being able to care for oneself- things like walking, seeing, hearing, speaking, eating, drinking, standing, sitting, among other physical and mental activities. So, once we are notified (either the employee notifies HR or his/her supervisor), we are obligated to effect an “interactive process” to discern if we provide a “reasonable accommodation” to afford the affected employee to perform the essential functions of their position.
Ah, yes. What IS the “essential” function of that person’s job. (Now, you realize while good job descriptions for each position are essential for our firms. And, writing them now may be a little too late.)
And, what is this “interactive process’? It is an individualized assessment of that employee’s disability as it pertains to his/her specific job- and how we can alleviate or work around any limitations. Some functions may be assigned to another individual or not performed. But, if that employee can’t perform one or more essential function, then that person is unqualified for the job.
As you can see, most of the violations of FMLA and ADA are the results of our inactions- the failure of our firm to respond in a proper and timely fashion.
It is our job to ensure that we don’t cross those lines.
