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Is your Employee’s Leave of Absence Covered by the FMLA and/or the ADA?Matthew H. Luttinger and Bruce E. Loren | Aug 16 2019

We recently published an article on the topic of "no call, no show" employees and whether they may be protected under the FMLA (Family Medical Leave Act) or ADA (American with Disabilities Act). This article provides an overview of when the FMLA and ADA apply to an employee’s request for leave of absence.

FMLA

Covered Employers and Eligible Employees

Among other situations, the FMLA applies to private employers of 50 or more employees in 20 or more workweeks in the current or preceding calendar year.

For an employee to be eligible for leave under the FMLA, an employee must: (a) be employed at a worksite where 50 or more employees are employed by the employer within 75 miles; (b) be employed for at least 12 months; and (c) be employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of leave. An employee’s worksite under the FMLA will ordinarily be the site where the employee reports to, or if none, from which the employee’s work is assigned. For employees with no fixed worksite, e.g., construction workers, the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if a construction company headquartered in Florida opened a construction site in Georgia, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Georgia would be the worksite for any employees hired locally who report to the mobile trailer/company office for daily work assignments. If that construction company also sent personnel such as job superintendents, foremen, or engineers from Florida to the job site in Georgia, those workers sent from Florida continue to have the headquarters in Florida as their worksite. The workers who have Florida as their worksite would not be counted in determining eligibility of employees whose home base is the Georgia worksite, but would be counted in determining eligibility of employees whose home base is Florida.

Leave Entitlement

Eligible employees may take up to 12 workweeks of leave in a 12-month period for one or more of the following reasons: (a) the birth of a child or placement of a child with the employee for adoption or foster care; (b) to care for a spouse, son, daughter, or parent who has a serious health condition; (c) for a serious health condition that makes the employee unable to perform the essential functions of his or her job; or (d) for any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status. Employers are not required to pay employees who are on FMLA leave.

An employee has a serious health condition if he/she has an illness, injury, impairment, physical condition, or mental condition that involves either: (a) inpatient care; or (b) continuing treatment by a health care provider.

When an employee returns from FMLA leave, he or she must be restored to the same job or to an "equivalent job." The employee is not guaranteed the actual job held prior to leave. An "equivalent job" means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). However, an employer may deny restoration to a "key" employee under certain circumstances. A "key employee" is a salaried, FMLA-eligible employee who is among the highest-paid 10 percent of all the employer’s employees within 75 miles. To deny restoration to a key employee, an employer must have determined that "substantial and grievous economic injury" to its operations would result from the restoration. The "substantial and grievous economic injury" must be based upon the effect of restoration, and not whether the absence of the employee will cause such "substantial and grievous economic injury."

ADA

Covered Employers and Eligible Employees

The ADA applies to all employers with 15 or more employees. The ADA makes it unlawful to discriminate in employment against an individual with a disability in all employment practices, including leave. A "disability" is: (a) a physical impairment that substantially limits one or more major life activities; or (b) a record of a physical or mental impairment that substantially limits one or more major life activities. If there is any doubt, employers should assume any medical condition to be a disability because of the ADA’s broad and open-ended definition of a disability.

Leave as a Reasonable Accommodation

The ADA mandates that employers provide reasonable accommodations to employees with disabilities so that employees may retain the benefits and privileges of employment of those of similarly situated employees without disabilities. Leave is an appropriate accommodation for employees that: (a) are ineligible for FMLA leave due to insufficient tenure or hours of service; or (b) have exhausted FMLA leave and/or company provided leave. Like the FMLA, employers are not required to pay employees while they are on leave. The purpose of leave is to give the employee time to become able to perform the essential functions of his or her position upon return to work. The need for leave must be related to the disability and the providing of leave must be likely to enable the employee to return to work.

Employers should analyze whether providing leave is a reasonable accommodation using the following three steps: (1) whether leave is a reasonable accommodation; (2) whether the leave accommodation is effective; and (3) whether the leave request imposes an undue hardship on the employer or employer’s operations.

Step 1

Leave is a reasonable accommodation if: (a) the employee has an estimated return date; and (b) the employee will be able to perform the essential functions of the position upon return.

Step 2

Factors to consider in analyzing whether the leave accommodation is effective are: (a) the nature of the disability and limitations; (b) the anticipated duration of leave; (c) the employee’s position and essential functions; and (d) the purpose served by the leave.

Step 3

The leave request imposes an undue hardship on the employer or the employer’s operations if holding the job open for the employee to return would cause the employer a significant difficulty or expense. This analysis requires the examination of many factors including, but not limited to: (a) the size of the employer; (b) the number and location of the employer’s facilities; (c) the cost to the employer; (d) the employer’s financial resources; (e) and the impact the leave would have on the employer’s other employees and the employer’s ability to conduct its business during the period of leave.

Practices to Avoid to Comply with FMLA and ADA

Do not have:

  • Policies or procedures which provide for automatic termination if an employee fails to return to work.
  • Discipline/penalties associated with "no-fault" attendance plans.
  • No-call/no-show automatic termination rules.
  • Lack of coordinated response to FMLA/ADA issues.

This newsletter only provides an overview of the FMLA and ADA as they apply to leave. If you have any specific questions concerning best practices do not hesitate to contact an attorney experienced in employment law and human resources.

Matthew H. Luttinger Luttinger and Bruce E. Loren of Loren & Kean Law are based in Palm Beach Gardens and Ft. Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law and employment law. Mr. Luttinger focuses his practice on labor and employment law, only representing the interests of employers and business owners. The firm represents businesses in a wide range of disputes, including OSHA investigations and citation contests, DOL investigations, discrimination claims, and state and federal wage litigation. Mr. Luttinger and Mr. Loren can be reached at mluttinger@lorenkeanlaw.com or bloren@lorenkeanlaw.com or 561-615-5701.