�鶹app

By David James and Joe Schmitt

When an employee requests time off because of an illness or injury, various laws and employer policies may be implicated. Setting aside state leave laws (if any), three laws represent the primary considerations for management administering requested leave: the Family Medical Leave Act; the Americans with Disabilities Act; and workers’ compensation.

The Family Medical Leave Act (FMLA) is designed to permit qualifying employees up to 12 weeks of unpaid leave per year in various situations, including the birth or adoption of a child, the serious health condition of the employee, and the serious health condition of a family member of an employee.

During FMLA leave, employees must be permitted to continue benefits coverage on the same terms as working employees, and employees must be reinstated to the same position upon their return from leave. The FMLA permits various forms of leave, ranging from an uninterrupted period of time (e.g., two months), periodic leave (e.g., every other Monday) and, most frustratingly for employers, intermittent leave (e.g., unpredictable days for impairments with flare-ups, such as migraines). With very few exceptions, the FMLA does not permit employers to consider the business impact of a requested leave of absence; therefore, if an employee qualifies, the employer generally must provide the leave.

The Americans with Disabilities Act (ADA) requires employers to accommodate employees with disabilities. The definition of a “disability” is expansive and includes most physical and mental conditions that are not inherently temporary, such as a flu or a broken arm expected to heal. The ADA requires various forms of accommodations, one of one which is an unpaid leave of absence.

However, unlike the FMLA, the ADA only requires accommodations that are “reasonable.” Thus, an accommodation analysis considers not only the employee’s need but also the employer’s capacity for providing the accommodation. Past practice frequently is part of the analysis, so be cautious about allowing leaves to one employee if you would not want to provide that leave to the employee’s peer.

Workers’ compensation is designed to pay employees who are injured on the job. In this sense, it is narrower than the FMLA and ADA, which apply to impairments and illnesses that go beyond the workplace. Furthermore, workers’ compensation, as its name suggests, is focused primarily on compensating employees for lost wages and the “value” of their injury, not returning them to the workplace.

Consequently, workers’ compensation does not mandate leave as much as it implicitly encourages employers to return employees to work, even in a reduced capacity, to minimize the income loss and insurance premium spike associated with the claim.

While these laws have different goals and impose different obligations, they occasionally overlap. The starting point of a leave analysis should always be the FMLA. If an employee qualifies for FMLA leave, it does not matter whether the leave is reasonable (ADA) or whether we would prefer the employee return to work in some capacity to reduce income loss (workers’ compensation); we must permit the leave.

If an employee does not qualify for FMLA leave, we must still consider whether the need for leave stems from a disability, and if so, whether the leave of absence would be a reasonable accommodation under the ADA. This analysis often arises when:

• An employee has not worked for the company long enough to qualify for FMLA leave (12 months and 1,250 hours in the past year),
• The employer is not large enough (50 employees) to be covered by the FMLA, or
• The employee has exhausted his 12-week FMLA entitlement but still cannot return to work. (Yes, that means that the ADA sometimes requires a leave of absence beyond three months.)

If the employee’s absence is caused by a workplace injury triggering workers’ comp, we might also consider whether we would be best served by offering a light-duty position to minimize his wage loss. If an employee is out on workers’ comp and is also eligible for FMLA leave, ensure that the employee completes FMLA paperwork so that the time off counts against the employee’s 12-week entitlement. If we offer the employee a light-duty position and he accepts, the FMLA clock stops, as he is no longer on FMLA leave. If the employee declines light duty, your workers’ comp exposure (or premium hike) may be reduced.