Work-Leave

What is work-leave, anyways? Work-leave is a period of time in which an employee is allowed to take time away from work when they are experiencing out-of-the-ordinary situations (including family and medical reasons). Work-leave is different than annual leave or sick time.

Work-leave policies can be complex, but the policies can benefit both the employee and the employer. The two main laws covering employee work-leave are the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). The ADA applies to private employers who have 15 or more employees, or state and local government employers of any size. FMLA applies to all government employers (local, state, and federal) and to private businesses with 50 or more employees within 75 miles (with some exceptions).

What does the ADA say about work-leave?

Employees with disabilities have rights to work-leave

Under the employment section of the ADA (Title I), employees with disabilities have a right to reasonable accommodations, which may include a change in workplace policies, facilities, or how work is done. Work-leave is one form of accommodation.

There is no set amount of work-leave that the employer must grant under the ADA

As with all reasonable accommodations, the amount of leave granted depends on the job and the disability, and must be determined on an individual basis. Employers must grant leave as a reasonable accommodation unless doing so would cause the employer undue hardship. In the case of work-leave, undue hardship may be based on how much the employee’s absence disrupts workplace operations.

Employers have rights and responsibilities under the ADA

Employers may ask for medical documentation when employees request work-leave. This information should be limited to what is needed to confirm that the employee has a disability or determining how much leave is needed. Medical information must be kept confidential and in a separate file from other employment records.

An employee with a disability who has been granted medical leave under the ADA should return to the same job, unless holding the job open causes an undue hardship. In a case like this, the employer must consider other forms of accommodation, including reassignment to a vacant position for which the employee is qualified, which would enable the employee to return to work.

If an employer has a reasonable belief that an employee will be unable to continue performing the essential functions of the job, or will pose a significant risk to the health or safety of themselves or others due to a medical condition, the employer may make disability-related inquiries or require the employee to have a medical examination. Any inquiry or examination must be limited to what is needed to assess the employee's ability to work. The employer may not use the employee's leave as a justification for making unrelated inquiries or requiring an unrelated medical examination.
 

What does FMLA say about work-leave?

FMLA gives employees the right to take work-leave for certain family or medical reasons

This leave is usually unpaid, but employers can choose to pay a percentage of the wage. While on leave, employees’ jobs must be held for them and their benefits (such as health insurance coverage) must be continued.

Employees who have rights to FMLA leave are those who:

• Have worked at least 1,250 hours for the 12 months prior to the leave, work in locations with at least 50 employees within 75 miles, and have worked with the business for at least 12 months (which need not be consecutive).
• Are pregnant, have just given birth, or have adopted a child.
• Have a serious medical condition lasting at least three days and requiring medical treatment or requiring a hospital stay of at least one night.
• Have an incapacitating condition lasting at least three days and requiring medical treatment; this may include a chronic condition that sometimes “flares up” and requires medical treatment.
• Are caring for a family member who has an injury or illness sustained during military service.
• Are caring for a family member (spouse, child or parent) with a serious health condition.

There are limits to the amount of FMLA time employees may use in a 12-month period

Under FMLA, employees are allowed to take up to either 12 weeks or 26 weeks of work-leave in a 12-month period, depending on the reason for needing the time off.

Employees are allowed up to 12 weeks of leave in a 12-month period for:

• The birth, adoption, or foster care of a child.
• The employee’s own serious health condition.
• The care of a spouse, child, or parent with a serious health condition.

Employees are allowed up to 26 weeks of leave in a 12-month period to care for a service member with a serious service-connected injury or illness.

Regardless of the length of time the employee is allowed to take off, they may not have to take the time off all at once. When medically necessary, employers must let employees break up their FMLA leave or “stretch” it out by working reduced hours. To find out more, go to the U.S. Department of Labor’s FMLA Employer Guide.

Employers have rights and responsibilities under FMLA

Under FMLA, an employer may (but does not have to) require the employee to certify the need for work-leave from a medical professional. The U.S. Department of Labor provides a form titled Certification of Health Care Provider for Employee's Serious Health Condition under the FMLA for this purpose. The employee must be given at least 15 days to provide this medical information. This information must be kept private and in a separate file from other employment records.

If an employee has been granted medical leave under the FMLA, they have a right to return to the same or a similar job after their leave has expired. The FMLA allows employers to require a return-to-work certification from a health provider for all medical leave, as long as the same requirement is applied to all employees with similar job positions who are returning from leave, not just those on FMLA leave.

When do both the ADA and FMLA apply?

Generally, public sector employers and private business employers with more than 50 employees are covered under both the ADA and FMLA. Employees in these workplaces can have rights under both laws if they meet the definition of “disability” (ADA) and “serious health condition” (FMLA). Employees who have used up FMLA leave may still have rights under the ADA if they meet the ADA definition of a person with a disability. Accommodation is one such right. Additional leave (beyond the employee’s FMLA leave) could be an accommodation that must be provided under the ADA.

Employees with disabilities also have the same rights as others to use FMLA for family-related reasons, such as the birth of a child or the need to care for certain family members with serious health conditions.

Employers should treat apparent and non-apparent disabilities the same. Employees with disabilities that may not be obvious, such as diabetes, depression, or post-traumatic stress disorder (PTSD), could be covered under the FMLA or the ADA, or both.

Generally, the FMLA covers work-leave related to pregnancy and the birth of a child. However, pregnancy-related impairments that rise to the level of disability (i.e., impairments that substantially limit one or more major life activities and last, or are expected to last, at least several months) may be covered under the ADA. Examples of pregnancy-related impairments are anemia, cervical insufficiency, and gestational diabetes. Where pregnancy-related impairments result in disability, the individual is entitled to reasonable accommodations, including leave if needed. Learn more from the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues.

Indefinite leave and light duty

About indefinite leave: Employers are not required to grant indefinite leave and can require employees to provide an approximate return-to-work date. However, the employer must be flexible in situations where the return-to-work date must be changed for medical reasons, unless providing additional leave would cause undue hardship.

About light duty: While not required, employers may create light duty positions. For example, working shorter hours and gradually increasing to full-time work as an employees’ health condition allows. Employers cannot require employees to accept light duty in lieu of FMLA leave. The employer is not allowed to deduct FMLA leave while an employee is in a light duty position.

Additional points that employers need to keep in mind:

Avoid “100% healed” policies. Employers cannot require an employee to be completely healed before returning to work. Policies like this have been found to violate the ADA because they do not allow for the possibility that employees with disabilities may be able to return to work with reasonable accommodations.

Avoid “no-fault” leave policies. These policies allow a specified number of absences, and employees who exceed the specified number for any reason are automatically fired. Like 100% healed policies, no-fault leave policies may deny employees the right to take leave as a form of reasonable accommodation and is a violation of the ADA.

Educate managers and supervisors. Managers are often “first responders” to disability disclosures and work-leave requests. Make sure they are educated about the legal rights of employees with disabilities and the need to maintain confidentiality.

Limit requests for medical information. Under both the ADA and FMLA, employers can only collect the information needed to confirm that the employee has a disability or medical condition, to identify possible accommodation options, and/or to determine the probable duration of the work-leave needed. The FMLA does not allow the employer to demand a diagnosis to grant FMLA leave. Requesting or collecting medical information that is unduly lengthy, irrelevant, arbitrary, or duplicative of information the employer already has can violate the ADA.

Use work-leave as the last accommodation option, not the first. Employers should work with the employee to determine how the disability impacts the essential functions of the job and what accommodations can be considered. Accommodations that keep the employee engaged in the job as much as possible tend to be most effective for both the employer and the employee. Before resorting to work-leave as an accommodation, consider the full range of accommodations that could be effective given the disability, the job, and the situation.