Employee Leave: A Mystery No More!

There comes a time when employees need leave. They may have an upcoming medical procedure, have suffered an accident or unexpected illness, or even have personal issues that need to be addressed. It’s important for employers to address and document requests, supporting information, and approved leave timeframes to maintain compliance with federal and state regulations, as well as to follow internal company procedures.

There are two Acts that may generally come into play when an employee is having medical issues: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act of 1990 (ADA). (Note: the ADA was amended with the ADA Amendments Act of 2008 (ADAAA), but this post will use “ADA” to refer to the Acts.) While these are separate Acts with different purposes, FMLA exists to provide leave while the ADA exists to prohibit discrimination against and provide reasonable accommodations to employees with disabilities. The way the Acts work and the medical issues covered often dovetail, frequently creating confusion for employers and employees. Employee leave (and return date) shouldn’t be a mystery!

Family and Medical Leave Act

Many people are familiar with the Family and Medical Leave Act (FMLA) and that it exists to provide medical leave to employees. That may be the extent of their knowledge: aware that it exists, but not which employers and employees are covered, how long the leave lasts, qualifying reasons for leave, and the notices that employers are required to provide to employees on leave. Often, an employee may say, “I need to go on leave” and a manager or supervisor jots down “FMLA” somewhere and sends the employee on their merry way. Then the employee goes out for a few months, there is little-to-no communication, and no one knows when – or if – they will return.

The FMLA provides for 12 weeks (or 480 hours) of unpaid, job and benefit protected leave for eligible employees working for covered employers (those with 50 or more employees) for specified family and medical reasons. Please see the FMLA Poster and the Employer’s Guide to the Family and Medical Leave Act (FMLA) for additional information on covered employers, employee eligibility, circumstances that qualify for leave, and other helpful information.

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) prohibits discrimination based on disability, imposes accessibility requirements on public accommodations, and requires covered employers (those with 15 or more employees) to provide reasonable accommodations to employees with disabilities. Additional information about the ADA can be found on the ADA National Network.

Defining Disability and Serious Health Conditions

A question that comes up for both the FMLA and the ADA and tends to generate some confusion is “What is a covered condition/disability?” Instead of listing specific medical conditions or impairments (physical or mental), both Acts use more flexible language to define “disability” and “serious health condition” in ways that are similar enough to overlap quite a bit.

The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” Some court cases have held that the term should be interpreted broadly so that it could even cover temporary conditions that are severe, such as someone with serious injuries to both legs that render them unable to walk for an extended period of time and requiring multiple surgeries and therapy to recover. The FMLA defines a “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider,” including a continuing period of incapacity. Again, recommendations include interpreting this broadly, and “incapacity” includes the inability to work, attend school, or perform “regular daily activities” – similar to the “major life actives” mentioned in the ADA definition of disability.

What does this mean?
1)

This means an employee may request reasonable accommodations under the ADA and also need leave under FMLA for the same condition, or vice versa. An employee who request FLMA for a back or knee surgery may be considered temporarily disabled and eligible for accommodations under the ADA while healing. At the same time, an employee who has requested accommodations such as noise-canceling headphones for chronic migraines may also need intermittent FMLA for those migraines when they become so severe the employee cannot work. The complications can start pretty quickly; due to the coverage requirements, employers who are not considered covered under FMLA would be covered under the ADA. Several court cases have ruled that leave can be a reasonable accommodation in many instances.

Obviously, this is just the tip of the leave request iceberg. Each notification of disability and request for accommodation or leave should be handled individually. There is not a one-size-fits-all solution for these types of requests or a “magical” word or phrase that the individual has to invoke for protection under the ADA or FMLA. They don’t even have to say “ADA” or “FMLA” to make someone aware that they are requesting accommodations. Sometimes it is as simple as the employee asking for help or even a supervisor noticing that their work quality is slipping.

2)

This also means that employers should thoroughly document their process. This is a little easier with FMLA, as the regulations clearly spell out that specific notices, medical information, and designation forms must be sent or returned within certain timeframes. However, the ADA doesn’t have as specific guidelines on the timeline process for the interactive process or provide sample forms or notices for employers to use. The Job Accommodation Network is an excellent resource for ADA issues, including sample forms and tool kits, training, ideas for accommodations, research, and more.

The key when speaking with employees is to ensure that there is open and clear communication between both parties. While sending everything through the mail is easy, it’s important to reach out by email, text, or call if you are not getting information back. Stress the importance of completed medical certifications or inquiry forms to document and confirm that the employee meets the guidelines to determine if FMLA or ADA covers their leave or accommodation request and to ensure that details on timelines and accommodations are clearly understood. It’s important to strike a balance between letting an employee recuperate while on leave and not contacting them so often they may as well be at work. Reach out a little before their return-to-work date to check on them and confirm that they are still returning as planned or if there have been any unexpected complications.

In Conclusion

Having a clear process and procedure for your company that includes the timeline for processing, issuing, and communicating expectations for both parties when requesting accommodations and leave will help alleviate confusion, ensure consistency and compliance, and reduce the mystery of when your employees are coming back to work.

Curious and want to read more on FMLA and ADA? Take a look at our recent blog about sick leave!

Written by: Jessica Sinclair, Compliance Officer

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