Employers face even greater challenges in meeting the often varying legal obligations under the Americans with Disabilities Act of 1990 (ADA) and the Family Medical Leave Act of 1993 (FMLA) – in addition to a particular state’s disability and workers’ compensation benefits laws –with the issuance by the Equal Employment Opportunity Commission (EEOC) of the Final Regulations under the ADA Amendments Act of 2008 (ADAAA), which became effective on May 24, 2011.
Navigating Disability Law and Leave Obligations
Employers often ask if it is proper to run and require an employee to use ADA, FMLA, state disability and workers’ compensation leaves concurrently. The answer is that it is appropriate under federal law and in most states, but to do so an employer must, among other things, send a written notice to employees that their leave time under the various programs will run concurrently. As state laws impact the employer’s rights and obligations, employers must remain aware of their varying obligations under the ever-evolving disability laws.
Designated Leave Periods: One of the first challenges an employer faces is that while FMLA leave is for a finite, statutorily defined period (generally limited to 12 weeks of leave per 12-month qualifying period), under federal, state and city disability discrimination laws, an employer must assess whether a leave beyond statutorily designated leave periods constitutes a reasonable accommodation. Employers are obligated to engage in an interactive process and assess what constitutes a reasonable leave/accommodation in each specific case.
Employee Qualification Under Definition of “Disability”: A second challenge arises with the assessment of whether an employee qualifies for rights under a particular statute’s varying standards.
For instance, the ADA definition of disability (without any waiting period and applicable to employers with 15 or more employees) is: A “qualified individual with a disability” is someone who has a disability and who, with or without reasonable accommodation, can perform the essential functions of the position at issue.
The term disability lists three possibilities: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (2) a record of such an impairment or (3) being regarded as having such an impairment.
In contrast, the FMLA applies to employees at worksites where at least 50 employees are employed by the employer within 75 miles and requires the employee to have worked for the employer for a total of 12 months.
The FMLA provides for 12 workweeks of unpaid leave in a 12-month period for:
(a) The birth of a child and to care for the newborn child within one year of birth.
(b) The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement.
(c) The provision of care for the employee’s spouse, child or parent who has a serious health condition.
(d) A serious health condition that makes the employee unable to perform the essential functions of his or her job.
(e) Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on “covered active duty.”
A covered employer under the FMLA Military Family Leave Entitlements must also provides up to 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent or next of kin to the employee (military caregiver leave).
Under the FMLA, a serious health condition is an “illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.”
Additional Unpaid Leave: Unlike the bright line requirements set by the FMLA for leave rights, under the ADA/ADAAA, additional unpaid leave may be required as a “reasonable accommodation.” A third challenge an employer faces is to assess whether a leave beyond that provided by the FMLA or company policy is required as a reasonable accommodation.
The following are some of the criteria that can come into play in this assessment:
· How much additional leave is required? The shorter the timeframe requested, the more likely it will be deemed a reasonable accommodation.
· Will the employee be able to fulfill his or her essential job functions when he or she returns?
· If there is no date certain for a return, can a bona fide, reasonable argument be made that this prolonged absence will have a significant adverse effect on the employer’s long-term business interests? Is there a demonstrable need for continuity? Time-limited or grant-dependent job functions might cause an extended leave request to be deemed unreasonable.