Require an employee to use any paid time off (such as vacation or
personal leave) during the leave, so that the employee’s absence is not extended
unintentionally beyond the expiration of the specific leave. Note that according to the
MCAD an employer may not require an employee taking leave under the MMLA to
use available vacation and other paid time off concurrently with maternity leave.
Include in the policy a specific, reasonable deadline for a return to work,
such as a provision that employment will generally be terminated if the employee
cannot return within that time frame (for example, following completion of FMLA
leave, six months or one year). Although such a deadline may need to be modified
depending on the circumstances as a form of reasonable accommodation, the
implementation of a bright-line, neutral rule will provide the employer with a degree
of finality when dealing with extended leaves.
Provide that reinstatement cannot be guaranteed after a certain point (for
example, after conclusion of FMLA entitlement).
Provide that the employer retain discretion with regard to leave decisions
whenever possible (note that employers may not have substantial discretion in
decisions regarding FMLA leave).
Update and Maintain Accurate Job Descriptions
Whether an employee is a “qualified” individual with a disability and therefore
entitled to reasonable accommodation often turns on whether she can perform the “essential”
functions of the job. Although not controlling, a clear, well-drafted, accurate job description
specifically detailing the employee’s job duties is often the best record of what is an essential
job function and can be very useful in dealing with leave of absence issues. Especially