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EMPLOYMENT LAW GUIDE: - page 66 / 134





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  • 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


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