Traversing requirements for granting unpaid medical leave and leave as an accommodation for individuals with disabilities can be complicated for employers and employees unless everyone at the workplace knows the ground rules.
Best practices for state- and federal-law compliance start with clear communication about when leave should be granted, as well as notice and documentation requirements for medical, military, or other leaves of absence.
The Federal Medical Leave Act was enacted in 1993 to enable employees to balance their family life and their work by letting them take reasonable unpaid leave for certain family events and medical reasons. The Washington state FMLA is largely identical to the federal law, except that the Washington FMLA covers registered domestic partners, while the federal FMLA covers only spouses, including same-sex spouses. An employee must be at a job for 12 months and have worked 1,250 hours before being eligible for unpaid leave under the FMLA.
The leave act provides unpaid leave for certain qualifying reasons such as the birth or adoption of a child, serious health conditions of the employee or an immediate family member, and military leave for an employee whose spouse is called into active duty. The FMLA applies to all public agencies, including schools, and employers with 50 or more employees.
The amount of leave for which an employee is eligible varies based on circumstances. For example, eligible employees can be granted up to 12 unpaid work weeks while an employee requesting leave to care for an injured service member may be allowed up to 26 work weeks—both based on proper documentation.
An employee who is unable to perform a job due to a serious health condition may take up to 12 weeks of unpaid leave, consecutively or on an intermittent basis. Likewise, eligible employees are entitled to use up to 12 unpaid work weeks to care for an immediate family member with a serious health condition, and that leave can be used in a consecutive block of time or intermittently.
For example, if an eligible employee needs to take leave to care for her father who is undergoing cancer surgery, the employer must grant leave as the employee is “needed to care for her father.” Federal law specifically contemplates that an employee may use FMLA to provide psychological support to an immediate family member with a serious health condition.
Employers should maintain open communication with an employee on approved medical leave in order to make arrangements for the employee’s return or an extension of leave. All medical information related to an employee, including documents related to FMLA, ADA, and the WLAD, must be kept in a medical file separate from personnel records.
Every situation is different, but generally, approved leaves of absence under the FMLA apply to inpatient care. Pregnancy and birth-related issues/complications, chronic conditions, and multiple treatments are all considered serious health conditions and are protected under the law. Routine health exams aren’t considered “treatment” and don’t entitle an employee to unpaid leave under the FMLA.
Military leave is another dimension of FMLA and applies to an eligible employee’s need to take up to 12 weeks of leave while a spouse, son or daughter, or parent is on active military duty, regardless of whether the enlisted relative has sustained an injury. If the active-duty family member sustains an injury or illness while on active duty, the eligible employee may take up to 26 weeks of “military caregiver leave” every 12 months to care for the injured service member.
Every employer should explain coverage under the FMLA and employee eligibility in their employee handbook. Promptly responding to an employee’s request for FMLA leave will prevent problems down the line. Often employees aren’t fully aware of their rights, and there are no “magic words” for making a request for leave.
Employers must provide notice in their employee handbooks outlining employees’ entitlement to medical leave and also should train supervisors and managers to alert human-resources administrators upon learning that an employee may qualify for leave.
For example, when an employee casually mentions to his supervisor that his wife is in the hospital due to a heart attack, he has given notice to the employer that he may qualify for FMLA leave. The employer is obligated to provide a U.S. Department of Labor Notice of Rights and Responsibilities form and initiate the designation process.
Communication between employers and employees about leave requests is essential and protects employers from interference and retaliation claims. Frequent absences for health-related reasons may implicate FMLA rights. When managers become aware of such a pattern, they should counsel the employee on attendance and provide an opportunity for the employee to explain.
Being proactive and communicative allows the employee an opportunity to inform his or her employer of a potential qualifying reason for FMLA, and the employer can respond appropriately. The process should be handed over to a human-resources director or department, as managers should be privy to the medical information of their employees only on a need-to-know basis.
Of course, an employee can talk about a serious health condition with anyone. However, supervisors or managers, who are prohibited from retaliating against an employee requesting or taking FMLA leave, only can talk to the employee about the condition.
The Notice of Rights and Responsibilities form to be used, as well as other updated forms and notices are available online at www.dol.gov/esa/whd/fmla. In addition, employers will find FMLA forms that include new requirements for military family-leave caregivers and available from the DOL website at www.dol.gov/whd/fmla/2013rule/militaryForms.htm and www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.
FMLA leave is unpaid, but an employee’s health insurance coverage must be maintained while on leave. An employee may be required to exhaust all paid leave, including vacation time, while on FMLA leave, but this should be stated in the employer’s handbook.
An employee must be restored to his original job, with all the same terms and conditions, following FMLA leave, unless his job has been eliminated or he would have been laid off. If an employer wishes to take adverse action against an employee who currently is exercising his or her rights under the FMLA, they should consult with an attorney first. The FMLA strictly prohibits interference with FMLA rights and retaliation against employees who exercise their rights under the law.
In some situations, when protected leave ends under FMLA, or in the event an employee isn’t eligible for FMLA, an employer’s obligations under the American Disabilities Act (ADA) begin. Should an employee’s serious health condition also constitute a disability as defined by the ADA, the employer is required to initiate an “interactive process” with the employee to identify reasonable accommodations that would enable the employee to perform the essential functions of his or her job.
The ADA covers employers with 15 or more employees and strictly prohibits discrimination against individuals with disabilities.
In Washington, the Washington Law Against Discrimination also covers individuals with disabilities and requires employers to implement reasonable accommodations to enable disabled employees to perform their jobs. The WLAD covers employers with eight or more employees. Anti-discrimination provisions and the affirmative duty to accommodation under the ADA and WLAD apply to all terms and conditions of employment, including job-application procedures, hiring, advancement, employee compensation, job training, and discharge of employees.
Individuals with disabilities under the ADA and WLAD have a sensory, mental, or physical impairment that limits substantially at least one major life activity. The definition of disability is broad. When FMLA isn’t available to an employee or when an employee has exhausted his or her 12 workweeks of leave, the employer should conduct an analysis to determine if a reasonable accommodation can be made so the employee can return to work. Additional medical leave under the ADA should also be considered.
Communication and engaging in an interactive process between the employer and the employee is essential to ensuring that FMLA, ADA, and WLAD laws are consistently applied.
Types of leave and situations described in this article are general in nature. Employers and employees can review the FMLA by visiting www.dol.gov/FMLA.Krisann Hatch is Spokane-based regional manager for Washington Employers, a Seattle-based human resources consulting and employee training organization, and Kara Craig is a labor and employment attorney with the organization.
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