Federal Family Leave Laws: Overview

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Friday, 2/19/2010

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Leaves Of Absence I: Federal Law (Outline by Mr. Cunningham)

Updated on 2004-01-17

Overview Of Laws Concerning Leaves Of Absence

I. INTRODUCTION

One of the most common areas of law addressed by labor counsel and human resources

professionals is the employee leave of absence. This is an area that is heavily regulated:

legislative policies at the state and federal levels have addressed leaves of absence for

disabilities and injuries of all types. For example, there are separate bodies of law governing

on-the-job injuries, disabilities, pregnancy-related disabilities, and family-care leaves. Ensuring

compliance with these laws is not impossible, but requires a cohesive approach to leaves of

absence.

This outline includes a summary of the various federal and California laws that most frequently

come into play for California employers. The focus is on the return-to-work requirements of

those laws. In summary, employees on certain types of leaves of absence have various

degrees of job protection. Just how much job protection varies on the type of law implicated,

the employer's written policies, and the job-level of the employee.

The most practical approach for an employer to take is to codify its leave of absence policies

in one place, and distribute them to employees. It is often the case that some employer

policies are best left to a case by case determination, but the area of employee leaves of

absence is not one of them. Because of the interplay of various legislative policies, not to

mention the employer's own policies, it is best to clarify the rules regarding leaves of absence

in advance. Written clarification not only aids the employee and avoids misunderstandings

prior to the commencement of a leave of absence, it also clarifies the rules for the individuals

responsible for ensuring the employer's legal compliance with the return-to-work requirements

of the various federal and California laws. This is particularly true because of: (1) the great

frequency with which legal issues concerning leaves of absence arise; and (2) the relativenewness of many of the applicable laws.

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II. RETURN-TO-WORK RULES UNDER FEDERAL LAW: THE ADA

Scope of the ADA

The Americans With Disabilities Act, 42 U.S.C. Section 12101 et seq. ("ADA")

was signed into law in 1990. As of July 26, 1994, the ADA became applicable to

ornia Law http://web.archive.org/web/20041225061549/lalabor.com/main/id

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employers with 15 or more employees. The Equal Employment Opportunity

Commission has proposed defining "disability" quite broadly, but the essential

statutory definition includes:

-individuals with a physical or mental impairment that substantially limits one or

more of the major life activities of an individual; or

-individuals with a record of such an impairment, or who are regarded as having

such an impairment.

The ADA makes it unlawful to "discriminate against a qualified individual with a

disability because of the disability of such individual in regard to job applicationprocedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of

employment." 42 U.S.C. Section 12112(a). A qualified individual with a disability

is one "who, with or without reasonable accommodation, can perform the

essential functions" of the job. Written job descriptions are evidence of the

essential functions of a job. 42 U.S.C. Section 12111(8).

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b. The ADA And Leaves Of Absence

1. Reasonable Accommodation

Many employers were familiar with the term "reasonable accommodation"

either due to their compliance with pre-ADA California law or the pre-ADA

federal law applicable to federal contractors (i.e. the Rehabilitation Act of 1973).

Now, however, an employers obligation to reasonably accommodate the

disability of an employee expressly includes such items as:

". . . job restructuring, part-time or modified work schedules, (and) reassignment

to a vacant position . . . ".

42 U.S.C. Section 12111(9)(b).

Thus, if an employee is on an ADA-covered leave of absence, the employer by

legal definition must revise the employee's job when the leave of absence ends,

change the returning employee's schedule, or place the employee into a vacant

position, all to reasonably accommodate the disability.

This conclusion is supported by the EEOC's regulations, which are more explicit.

The EEOC has said that reasonable accommodation also:

"include(s) permitting the use of accrued paid leave of [and of ]providing

additional unpaid leave for necessary treatment . . . ".56 Fed. Reg. 35730 (1991).

Thus, the ADA will require, as a reasonable accommodation of a disability, an

unpaid leave of absence for treatment. When the employee returns from the

leave of absence, the employer may be required to restructure the job, alter

schedules or even put the employee into a vacant position.

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2. Medical Inquiries Under The ADA

Much of the legislative history of the ADA, with respect to medical inquiries,

concerned inquiries by prospective employers into the medical history of an

applicant. The policy on this subject is straightforward: pre-offer "medical

examinations and inquiries" are barred under the ADA. 42 U.S.C. Section

12112(d)(1). After an offer has been made to an applicant, the employer may

have a medical examination conducted, as long as all "entering employees"

have to do so, amongst other qualifications.

Leaves of absence, of course, concern currentemployees, not applicants for

employment. If an employee goes out on a leave of absence due to a disability

under the ADA, can the employer make inquiries as to the severity of the

disability? The answer is probably yes, as long as the inquiry is "job-related and

consistent with business necessity". 42 U.S.C. Section 12112(4)(A). Employers

"may make inquiries into the ability of an employee to perform job-related

functions", and may conduct "voluntary" medical examinations. 42 U.S.C.

Section 12112(4)(B). The confidentiality of such examinations or inquiries is

protected.

3. Undue Hardship

An employer does not have to make an accommodation for a disabled

employee if the accommodation "would impose an undue hardship on the

operation of the business" of the employer. 42 U.S.C. Section 12112(b)(5)(A).

The EEOC has said that "undue hardship":

". . . refers to any accommodation that would be unduly

costly, extensive, substantial, or disruptive, or that would

fundamentally alter the nature of operation of the business."

56 Fed.Reg. 35744.

It would not pass muster for an employer to apply a more generous leave ofabsence policy for, say, an employee temporarily injured due to a car accident

on the way to work, than to an employee who develops cancer and needs time

off for treatments. Does an employer have to make further allowances for an

employee on an ADA-covered leave than it does for employees out on

non-disability-related leaves? The answer is probably yes, unless undue

hardship can be shown by the employer.

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III. RETURN-TO-WORK RULES UNDER FEDERAL LAW: THE FAMILY AND MEDICAL LEAVE ACT OF 1993

A. Scope of the FMLA

The FMLA went into effect for most employers on August 5, 1993. Its provisions

were no novelty for California employers since California had passed its own

family leave law in 1991 (discussed below), and for many years had its own

pregnancy-related disability laws.

The FMLA covers employers with 50 or more employees, and employees must

have 12 months of service with 1,250 over the prior 12 months. Twelve weeks

of leave are to be provided during any 12-month period:


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Federal Family Leave Laws: Overview