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The complicated web of employee leave

It's important to understand how the Family Medical Leave Act and Americans with Disability Act work together when it comes to temporary employee leave.

The Family Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid leave in a 12-month period if they, or a member of their family, have a serious health condition, for the birth of a child, or to care for a newborn child within one year of birth. Speaking at a NationaLease meeting, Sona Ramirez, of Clark Hill Strasburger, explained that a serious health condition is one that requires in-patient care or continuing treatment.

In order to be eligible for FMLA, an employee has to have worked at least 1,250 hours in the preceding 12-month period and worked for a business that has 50 or more employees in a 75-mile radius.

While it is important to understand what FMLA is, it’s also important to be aware that a “serious health condition under FMLA could mean a condition which substantially limits a major life activity under the [Americans with Disabilities Act] ADA,” Ramirez explained.

Here’s a brief review of the ADA.  

  • It prohibits discrimination against qualified individuals who have a disability.
  • It defines a disability as an impairment that substantially limits a major life activity.
  • It mandates employers must make reasonable accommodations for qualified individuals with a disability.

A reasonable accommodation is one that allows the employee to perform his or her job, but does not cause undue hardship and direct threat or harm to the employer.

There are several important points to remember about ADA and FMLA together:

  • ADA applies when the employee starts working, but FMLA only applies after they have met the time requirements.
  • In some cases, FMLA paperwork may be sufficient to let the employer know about an employee’s disability and give the employee a record of impairment, which makes him or her a protected individual under the law.

All this can affect leave of absence for an employee. According to Ramirez, the Equal Employment Opportunity Commission (EEOC) says that an employer cannot automatically terminate an employee under a neutral leave of absence policy or after they have used up their 12 weeks FMLA “if the employer can provide additional leave that is not an undue burden.” Several circuit courts have found that employers don’t have to give indefinite leave, but have not said what constitutes “reasonable” leave. However, the EEOC says it believes six additional months is reasonable.

Ramirez advises companies to set a maximum leave policy that includes a neutral leave of absence policy. She also advises documenting FMLA and medical leave and says to make sure FMLA runs concurrently with Workers Compensation leave and paid leave.

Other key points to remember:

  • Review employee medical certifications. If necessary, contact the doctor for clarification.
  • If the restriction on the employee is permanent and you cannot make accommodations, you can terminate the employee.
  • If the employee needs additional time off past FMLA or neutral leave, you can allow the leave. However, if they are requesting more than an additional month, you can deny that request.
  • Send a letter to the employee letting them know that their FMLA or medical leave is expiring and ask them to contact you with information on when they will return to work.
  • Determine if the employee can return to work with or without accommodations.
  • If the employee indicates he or she is unable to return to work, determine if giving them some additional leave — a few days or weeks, but not a month — will help.
  • If you have to terminate an employee, encourage them to reapply in the future.

Employee leave can be complicated so make sure you stay up-to-date on the latest developments and work with a human resource professional to make sure you are in compliance with all regulations.

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