A leave of absence may be granted under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), or under state workers’ compensation laws. In fact, an employee may be eligible for leave under any or all of them at once! Do you know the differing requirements and issues you may face under each of these laws?
FMLA Leave of Absence Process
When you learn of need for an FMLA leave you need to provide DOL Form WH-381 – the Notice of Eligibility and Rights and Responsibilities – which “basically lays out what the employee’s responsibilities are to provide information to you regarding the leave.” Audra K. Hamilton explained during a recent BLR webinar. “It also sets forth whether the employee is eligible . . . and it notifies the employee as to the requirements such as providing necessary certifications.”
Employers need to provide this form within 5 days of receiving notification of the need for leave from the employee, and it must be provided regardless of whether employee is eligible for leave or has any leave left for the year.
Employers can choose whether to also require medical certification forms. If required, these should be handed out with the notice of eligibility. The employee then has 15 calendar days to return the completed medical certification. And the employer has 5 days after the employee returns complete and adequate certification to issue a designation notice (DOL form WH-382).
The designation notice informs the employee whether his injury or illness qualifies for FMLA leave. “If the employee does return it and there’s some sort of misunderstanding or a lack of clarity about what’s on the form or you question the authenticity of the form, you may contact the employee’s physician for the sole purpose of getting authentication . . . you are not to talk to the doctor about anything else related to the employee’s medical condition, however.” Hamilton advised.
When is an ADA Leave of Absence Required?
Under the ADA, a leave of absence would be one of many potential forms of reasonable accommodation to consider.
“The theory behind leave as a reasonable accommodation is to allow an employee to take a leave of absence for treatment of a disabling condition so that the employee will then be able to return to work,” Jonathan Mook explained during the CER webinar. However, “unlike the FMLA – which has the 12-week requirement for leave – the ADA doesn’t have any specific amount of time that you need to grant leave as a reasonable accommodation under the ADA. The EEOC has taken the position that leave may be a reasonable accommodation, and that leave can continue until it constitutes an undue hardship under the ADA for a particular employer.” Mook told us.
However, the EEOC does recognize that indefinite leaves of absence are not deemed to be a reasonable accommodation because they do impose undue hardship.
Workers’ Compensation Leave of Absence
Workers’ compensation laws require employers to provide a paid leave of absence to any employees injured in the course or scope of employment if the injury renders the employee unable to work. The amount of paid leave required varies by state.
“If you have an employee who’s on workers’ comp, you can run the FMLA [leave] concurrently.” Hamilton told us. However, when employees are on concurrent FMLA and workers’ compensation leave, they may not be required to also use other types of paid leave, such as sick leave. In other words, an employer cannot force an employee to use all types of leave at once.
That said, employers may allow employees to supplement their benefits with paid sick leave if state law allows. Be sure to consult counsel to determine what your state workers’ compensation and disability laws require, and what your insurance requires.
The employer may choose to offer light duty work (when applicable) in order to bring an employer on workers’ compensation leave back to work; the employee can refuse it, but doing so may mean that the employee may lose the right to further workers’ compensation paid leave. However, the employee will be able to remain on unpaid FMLA leave if she or he still suffers from a serious health condition. If the employee returns to work on light duty, FMLA reinstatement rights still apply when employee is able to return to her or his regular job.
The above information was excerpted from the webinar titled “Leave Law Compliance: How to Master FMLA, ADA, and Workers’ Comp Overlap.” To register for a future webinar, visit CER webinars.
Jonathan R. Mook is a founding partner in the firm of DiMuroGinsberg and is a nationally recognized authority on the Americans with Disabilities Act. He has authored two published treatises: “Americans with Disabilities Act: Employee Rights and Employer Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.”
Attorney Audra K. Hamilton, of counsel with the law firm of GlassWilkin in Tulsa, Oklahoma, represents employers in all stages of litigation and administrative matters. Her experience includes representation of employers before federal and state trial courts, the Equal Employment Opportunity Commission, state employment security commissions, and arbitrations.