By Guest Blogger Stella Skaljac Esq., SHRM-SCP
For years, employee handbooks contained policies that explicitly stated employment would automatically terminate if an employee failed to return to work after taking leave under the Family Medical Leave Act (FMLA). This was a common provision, and most employees understood they were risking their employment if they did not report back to work immediately following their 12 weeks of FMLA-qualifying leave. Today, however, employers who terminate an employee at the conclusion of FMLA leave for not returning to work do so at their peril.
In this type of situation, best practice suggests that an individual out on FMLA leave should be provided a chance to extend leave if they request additional time off due to their medical condition or disability. In fact, and legally speaking, the Americans With Disabilities Act (ADA) requires employers to consider such a request and whether it would be a “reasonable accommodation” as defined by this federal law.
Then the question becomes – what constitutes reasonableness under the law and is an employee’s request for an extra few months off really an accommodation that employers need to make? And as any good lawyer would say – it depends! Any amount of leave requested should at least be considered and discussed (this is called the “interactive process”) if there is medical documentation suggesting it would (1) enable the employee to effectively return to his/her position; (2) be reasonable under the circumstances; and (3) would not result in a significant hardship to the company.
The interplay between FMLA and ADA has always caused some confusion and frustration for employers. In addition to the often-discussed scenario mentioned above, there are several other issues that arise implicating the FMLA or ADA (and sometimes both at the same time or back-to-back). The following are some clarification points and practical tips to think about when faced with challenging employee medical leave situations and how the FMLA/ADA interact and what they require.
What is the main difference between the FMLA and ADA? The FMLA is 12-weeks of unpaid, job-protected leave for certain qualifying events (serious health condition of the employee or an employee’s family member, pregnancy, birth, etc.). The ADA provides an employee an opportunity to request an accommodation for a qualified disability as long as the employee can perform the essential functions of his/her job and it doesn’t create an undue hardship on the company.
Is there job protection under both the FMLA and ADA? Yes. The FMLA provides job-protected leave, which requires restoration to the same (or equivalent) position and benefits that the employee would have had but for taking the leave. Similarly, the ADA provides job-protected leave but the leave need not be indefinite and an employer can let an employee go if the ADA-requested leave is far too long and will severely disrupt operations. Unlike the FMLA, the ADA does not have a structured period of time off that is viewed as reasonable (whether a certain leave period is reasonable is dependent on the individual circumstances and determined on a case-by-case basis).
Is an employer required to provide healthcare benefits when a person is on FMLA or ADA leave? Unlike the FMLA, the ADA has no provision guaranteeing the maintenance of healthcare benefits. Therefore, employers must only provide healthcare benefits to employees on ADA leave if they have provided such benefits to others on a similar leave of absence. In contrast, the FMLA requires that employers maintain benefits for employees who take off for FMLA-eligible leave.
Is light duty available under the FMLA and ADA? The FMLA does not provide for light duty. In addition, employers cannot require an employee who is seeking leave under the FMLA to work light duty. Under the ADA, an employee can request light duty as an accommodation but may or may not get it depending on the circumstance (the employer is not required to create a whole new position but if the employer has a light duty program/positions already created, then an accommodation to do light duty is more likely to be considered reasonable).
There are many more nuanced issues and questions that continue to arise in our workplaces having to do with medical issues and impairments. For instance, in workforces across the country, we are seeing a surge in employee mental health issues. Employers are now having to grapple with how to address employee requests for time off to see a psychologist for anxiety or how to handle declining performance due to depression.
If you are approached by an employee inquiring about medical leave for an alleged health condition or a disability, it’s important to take it seriously and understand how the FMLA and ADA may come into play. Your managers and front-line supervisors will be key. They should be trained to be “first responders” to these inquiries. From the first moment they hear an employee say “I may need time off to deal with a health issue,” your managers/supervisors should work with the appropriate point of contact person within your organization and start the process of determining what will be needed in terms of medical verification, other documentation and schedules/timelines that need to be considered.
In making determinations to approve and qualify leave under the FMLA and/or the ADA, it’s always best to encourage open communication with the employee, rely on complete and sufficient medical documentation, maintain consistency in how these situations are being handled, and document the process. Although the interplay of the ADA and FMLA can be challenging, conducting the analysis in a systematic and thoughtful way will help to manage the process and lead to decisions that are legally compliant with both laws.
Please join us for a morning presentation on What NE Ohio Employers Need to Know About the FMLA and ADA on Tuesday, April 23rd, 8-10am at TalentLaunch in Independence, Ohio. Sign up at https://agileculture.eventbrite.com or call Stella Skaljac at 440.897.1991 for more information. This will be a fun, informative and engaging opportunity to learn about key employment laws and best practices!