Avoiding landmines with employee leaves of absences under the ADA, FMLA, and Worker’s Compensation

Posted on September 28, 2011 in Consulting, Employment Litigation

 Employees may seek a leave of absence under the Family and Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), or the Texas Workers’ Compensation Act (“TWCA”), and in some cases, under several or all of these statutes simultaneously.  Managing an employee leave of absence under these three laws can be very challenging, thus earning the nickname as the Bermuda Triangle of Employment Law.  This  newsletter is the first in a series of newsletters in which I will chart a path for handling employee leaves of absences under these statutes. 

The Family and Medical Leave Act

Employers have an obligation to provide eligible employees with 12 weeks of unpaid medical leave under the FMLA.  To be eligible for family or medical leave, an employee must have worked at least 12 months for the employer and worked at least 1,250 hours in the twelve months preceding the leave request.  Additionally, the reason for leave must fit within one of five specific listed categories, one of which we will be discussing in this newsletter: a serious health condition which makes the employee unable to perform the functions of his job. 

Upon returning from a family/medical leave, an employee must be restored to his original job if it still exists, or to an equivalent job with equivalent pay, benefits, and other employment terms and conditions.  In addition, the use of family/medical leave cannot result in the loss of any employment benefit that the employee accrued or was entitled to before using the family/medical leave.  However, these benefits will not continue to accrue during the family/medical leave.

 The Americans with Disabilities Act

All employers know of the obligation to provide disabled persons with reasonable accommodation.  Less obvious is the obligation to consider a leave of absence as a possible form of reasonable accommodation.  It is less obvious because most forms of reasonable accommodation are meant to help a disabled person perform his job.  Taking time off work (i.e., a leave of absence) serves the opposite purpose.  However, the EEOC takes the position that a leave of absence is in fact a reasonable accommodation where the purpose of the time off is to provide the disabled person the opportunity to remedy his disability such that he can return to work, with or without additional other reasonable accommodation.  This leads to my obvious first tip.   Tip One: Always consider leaves of absence as a form of reasonable accommodation.

 EEOC Guidance explains that an employer must keep a job open for an employee who has been provided a leave of absence as a reasonable accommodation.  Those guidelines state: “An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship.”

 This is all very important with the passage of the 2008 Amendments to the Americans with Disabilities Act.  Under these amendments, most persons who have a need to take time off of work because of a physical condition will qualify as “disabled” under the ADA.  This includes, for example, persons who suffer from diseases that require medical treatment and most likely encompasses every person who qualifies for FMLA leave.   It also includes persons who have been injured on the job and suffer an inability to work.

An employer must, therefore, consider its obligations under the ADA and FMLA simultaneously.  Thus, an employee might be entitled to FMLA and a leave under the ADA.  Likewise, an employee who is not eligible for FMLA may nevertheless be entitled to a leave of absence under the ADA.   For example, an employee with 11 months seniority who is diagnosed with cancer and needs chemotherapy can be denied FMLA but is likely entitled (depending on other facts) to leave under the ADA.  Additionally, a person who has exhausted FMLA may be entitled to more leave or extended leave under the ADA.  The EEOC states this point explicitly in its guidance on leaves of absences. 

This leads to my second tip: Tip Two: An employee who has exhausted FMLA leave or who is not entitled to FMLA leave may still be entitled to leave or more leave under the ADA.

What is unclear, however, is how long an employer must allow an employee to be absent from work as a reasonable accommodation under the ADA, which is a topic for a later newsletter as part of my series on managing employee leaves of absences. 

 Texas Worker’s Compensation Act

 The obligation to provide leave under the Texas Workers’ Compensation Act is more a practical necessity then a specific legislative directive.  Nothing in the TWCA states specifically that an employer must provide a leave of absence to an employee who has been injured on the job.  The statute instead prohibits an employer from terminating or otherwise discriminating against an employee who has been injured on the job.  An employer is compelled to allow an employee to take a leave of absence following an on the job injury so as to avoid being accused of terminating the employee because he was hurt at work. 

A person who is injured on the job might also be entitled to FMLA.  Additionally, the 2008 Amendments to the ADA appear to make every injured worker a “disabled” person under the ADA who might be entitled to leave as a form of reasonable accommodation.  This leads to my third tip: Tip Three:  Most persons injured on the job are “disabled” under the ADA and some persons who are injured on the job might also be eligible for FMLA.

Next month, I will pick up where we left off in continuation of how an employer can best manage employee leaves of absences and its obligations under the ADA, FMLA, and TWCA.