Employment Law Tips Part 3

Employment Law Tips Part 3

By: Neil L. Wojtal

III.   LEAVE AND RETURN TO WORK OBLIGATIONS

One area that can be very costly for employers is violations under various laws that require an employer to provide leave to employees or return employees to work after a temporary absence.

A.     Workers' Compensation Leave: There is no legal requirement that an employer hold a position open or create a new position for an employee once an injured employee is released by their doctor to return to work. However, if an employer has suitable employment available within the returning employee's physical and mental limitations, the employer must offer the employment to the returning employee. If an employer, without reasonable cause, refuses to rehire the returning employee when suitable employment is available, the employer may be liable for compensation of wages lost during the period of refusal, up to one year of wages. Note that this is an uninsured obligation of the employer. The rehiring obligations are set forth in the Wisconsin state statutes, Section 102.35.

B.     Federal and Wisconsin Family and Medical Leave Acts: Generally, both Acts only apply to employers with more than 50 employees. Note that the Federal FMLA does not supersede the Wisconsin FMLA so employers that are covered by both Acts must comply with the provisions of each Act. The Wisconsin Department of Workforce Development has a publication entitled "Comparison of Federal and Wisconsin Family and Medical Leave Laws" which describes the differences and similarities between the two Acts. You can access the publication online at:

http://www.dwd.wisconsin.gov/er/family_and_medical_leave/publication_erd_9680_p.htm

One other leave law should be considered if an employer has any employees who are called up for military service. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) protects an employee's job for a period of time when the employee is called up for active duty. The Department of Labor has a website that explains an employer's obligations under USERRA at:

http://www.dol.gov/elaws/vets/userra/userra.asp

C.     Americans with Disability Act: The Americans with Disability Act (ADA) must also be considered when an employer is reviewing potential leave obligations.

While the ADA does not require an employer to accommodate an employee who must care for a disabled family member, the FMLA may require employer to take such steps. Some courts consider that leave, with the corresponding obligation to rehire the employee, is a "reasonable accommodation" under the ADA. Employers with more than 15 employees who are covered by the ADA must determine whether leave may be required under the ADA. The EEOC has a publication available online that explains the interaction of the Acts at:

http://www.eeoc.gov/policy/docs/fmlaada.html

D.     Short Term and Long Term Disability Policies: If you have your own policies for your employees you must review your policies to make sure that your policies conform to any requirements of the ADA, FMLA and the workers' compensation laws.

Part 4 to follow

This blog is designed for general information purposes only and should not be construed to be formal legal advice. You should consult an attorney for advice regarding your own situation. Although great care has been taken to ensure the accuracy and utility of the information contained in this blog, no warranty is made, express or implied, and Zimmerman & Steber Legal Group, LLC assumes no liability in connection with any use or result from use of the information contained herein.