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Understanding Federal Leave Regulations

by Lori Armstrong Halber and Rick Grimaldi

Navigating the Americans With Disabilities Act (ADA), Family Medical Leave Act (FMLA) and workers’ compensation laws along with short-term disability, long-term disability and other income replacement benefits is possibly the single most complicated, confusing employment task for employers, human resource professionals and attorneys alike. The laws cover different situations but sometimes overlap, yet impose seemingly conflicting obligations.

The first step to avoiding liability is understanding each statute/benefit and its purpose. Workers’ compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment. (In exchange, the employee gives up his/her right to sue his/her employer for negligence.) Workers’ compensation applies only in situations involving workplace injury or illness.

The FMLA provides for 12 weeks of protected unpaid leave and continuation of health benefits (with the right to be reinstated to the employee’s former position) for covered employees who cannot work due to their own serious health condition, to care for an immediate family member who has a serious medical condition, for the birth and/or care of the employee’s child, for the placement and/or subsequent care of an adopted or foster care child or for a “qualifying exigency” relating to the employee’s spouse, child or parent’s active military duty.

The ADA prohibits discrimination on the basis of disability and requires employers to provide reasonable accommodation to qualified individuals who have a disability as defined by the act. The ADA is sometimes triggered when an employee with a disability requests a leave of absence: Leaves of absence can be a form of reasonable accommodation.

Many employers provide short-term and/or long-term disability benefits to their employees. Such benefits are a type of insurance that pays a percentage of an employee’s salary for a specified amount of time, if they are ill or injured (not on the job), and cannot perform the duties of their job. Generally, the benefit pays around 40 to 60 percent of the employee’s weekly gross income. Such plans do not, in and of themselves, provide a right to leave.

Stated this way, these statutes and benefits seem fairly straight-forward, so why the confusion? Well, the fact that an employee may qualify for disability benefits does not necessarily mean that the aforementioned statutes apply—they might and they might not. Countless clients have called with a variation on the following: our employee has been “out on disability” for four months and the supervisor needs to replace him or her—can we terminate his or her employment? The answer is, it depends. (Typical lawyer answer, we know.)

The first question to answer is, did the employee suffer a workplace injury? If so, terminating his or her employment is fraught with risk—the workers’ compensation law prohibits retaliation and terminating an employee shortly after he or she has applied for workers’ compensation looks bad. Once an employer has completed its analysis under workers’ compensation law, it must determine whether the FMLA applies. Does the employee meet the eligibility requirements under the FMLA and does he or she have a serious health condition? Has he or she returned the medical certification to support FMLA leave? Has the employee exhausted 12 weeks of leave? Once the FMLA analysis has been completed, the ADA must be applied. Does the employee have disability within the meaning of the act? Has the employer obtained, with the employee’s permission, sufficient documentation from the employee’s medical provider to determine whether leave may be a form of reasonable accommodation that will ultimately allow the employee to return to work and perform the essential functions of his or her job?

Each line of inquiry must be carefully answered to ensure compliance with the law. It’s important that employers not simply rely on a third party administrator and feel confident that they have complied. For example, an employee may not qualify for FMLA due to not having worked the required number of hours in the preceding year and, therefore, have his or her request for FMLA leave denied, but nevertheless may be entitled to leave as a form of reasonable accommodation under the ADA.

This area of law is ripe for expensive litigation. Employers need to take each situation and carefully analyze whether/how each statute applies, and even then are best served walking through the analysis with an experienced employment lawyer.

Published (and copyrighted) in Philly Biz, Volume 1, Issue 10 (September, 2016).
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