Clear the confusion when intersecting leave regulations collide
Employee leave shouldn’t be difficult to manage, but it is. The federal Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) both cover employee leave time with variations of compensation and provisions. The challenge is to properly classify leave time under the correct regulation—or risk having to provide back pay, lost wages, reinstatement, and much more.
The FMLA is not the only regulation that governs employee’s rights in leave scenarios, asserts employment law consultant Mark Tabakman. There are other statutes you must also consider.
Leave Scenarios Don’t Always Fall Into One Category
FMLA provides for unpaid, job-protected leave and continued group health insurance coverage for certain family and medical reasons, when certain eligibility requirements are met. ADA prohibits discrimination against people with disabilities in employment, public accommodations—such as work leave—and other contexts.
When determining which regulation covers the leave, consider that:
- Workers Compensation covers injuries that are work related,
- FMLA covers serious health conditions, and
- ADA covers conditions that meet the definition of disability.
The regulations are straightforward, but sometimes the leave scenario isn’t clearly defined by one category.
For example, do you know your obligations when an on-the-job injury is involved—or when the leave is triggered by a disability unrelated to the workplace (e.g. heart attack)? Sometimes both federal laws apply. According to adata.org:
- Employees who are covered by both the ADA and FMLA can have rights under both laws if they meet the definition of “disability” (ADA) and “serious health condition” (FMLA).
- Workers who have used up FMLA leave who meet the ADA definition of a person with a disability can still have rights under ADA. Accommodation is one such right, and additional leave (beyond the worker’s FMLA leave) could be an accommodation that must be provided under the ADA.
You must learn the basic principles that apply to leave scenarios under different laws, and how they intersect.
5 Steps To Determine Employer Responsibility
The U.S. Department of Labor (DOL) offers these five basic steps to determine your responsibility regarding medical and disability-related leave requests. Determine …
- Which laws apply to the employer. For example, the ADA applies to employers with 15 or more employees. The FMLA applies to private employers with 50 or more employees. Thus, for both laws to apply, a private employer must have 50 employees.
- Which laws cover the particular employee. For example, a short-term or temporary condition does not usually meet the ADA’s definition of disability.
- What rights/benefits the employee is entitled to. When more than one law applies, employers must provide leave under whichever law provides the greater rights and benefits to employees.
- Whether the employee is entitled to reinstatement. If the employee is able and permitted to return to work , consider whether you have an obligation to provide certain accommodations, an altered work schedule, and/or a light duty assignment.
- Whether the return to work poses a direct threat. You must consider the health and safety of all employee and others in the workplace—not just the returning employee.
Learn The Leave Law Of The Land
It isn’t just the federal law you must adhere to when handling an employee’s leave. Several states have passed their own family/medical leave laws—laws that sometimes provide greater benefits and leave time than the federal version.
The DOL states, “When employees are covered by both federal and state family and medical leave laws, they are entitled to the greater benefit or more generous rights provided under the different parts of each law.”
Complying with the appropriate leave regulations and laws is made simpler when you understand: the differences between leave laws and accommodation statutes, the role of accommodation, the issues involved in discharging employees on leave/returning from leave, and when an employer must give or deny a leave. Tabakman’s session provides this insight, and will enable you to clearly analyze potential problem areas and suggest proactive, strategic protocols and policies to address them with.
(This post first appeared in a ProfEd blog)
By Amy P on 28th June 2018