Once upon a time, the employer determined medical leave. Whether an employee had the ability to stay home when ill without risk of termination depended on the boss.
After a nine-year legislative battle, in 1993 Congress enacted the Family & Medical Leave Act (FMLA). For many workers, FMLA proved to be a great boon. Parents with newborns don’t have to negotiate for leaves of absence of less than twelve weeks. An ill employee who has to be off weeks from work has at least the solace of knowing the job will be preserved.
On the other hand, compliance with the law can be difficult for employers who need all hands on deck to get the job done. It can be particularly difficult for a governmental entity that employs only a few staff members. Unlike private employers, FMLA applies to all public employers.
The Americans with Disabilities Act (ADA) became effective in 1992, just prior to FMLA. Supreme Court case law narrowed the scope of ADA to a definition of disability that precluded almost all persons from receiving the protection of the Act. In response, Congress enacted the ADA Amendments Act of 2008, which greatly expanded who was defined as disabled and entitled to the protections of ADA.
Now, for persons with an illness or injury lasting several days or more, a short-term leave to get medical treatment will normally be deemed a reasonable accommodation that must be granted. The extent of leave required however is nebulous. The “reasonable accommodation” must not cause an “an undue hardship” to the employer.
There are situations in which an employee is entitled to both FMLA time off and leave as accommodation under ADA; conversely there are also situations where an employee is entitled to the protection of only one of the two acts. A father of a healthy newborn has a right to use FMLA but no protection under ADA. An individual who is blind and needs software to read text is entitled to accommodations to do the job under ADA; but if that person is otherwise healthy, there would be no leave required under FMLA. However, an individual with a serious illness may well need leave under FMLA, extended leave under ADA, and tools or other accommodations under ADA when the employee is able to return to work.
To make matters more complicated, the same employee may also have rights under the Workers Compensation Act if the employee’s illness or injury is caused by the job or happened in the workplace. The employer’s disability plans are an additional complication in calculating leave. The State of Indiana provides most of its employees with a wonderful benefit, short and long term disability. After thirty days absence, a State employee can receive five months of short term disability, followed by four years of long-term disability if needed. A condition of the disability policy is that the employee cannot be terminated while receiving benefits; the position must be held for the employee throughout the employee’s use of the disability. Thus, years after a State employee’s FMLA has expired, the State employee still has a right to return to the job if eligible for long-term disability.
The interplay of these employee medical leave rights is complicated. An employer cannot require an employee to accept light duty work during FMLA, but under workers compensation, the employer can require an employee to perform light duty work. Moreover, the employer may not only be allowed to, but can be forced to, provide light duty work, if the employee seeks light duty work as an accommodation under ADA in order to do the essential functions of a job. The question of how long a leave is reasonable depends upon a wealth of factors, including the size of the employer, the essentiality of the position to the employer, the prognosis for the injury/illness, and the availability of a temporary worker.
One key though is that the employee must show that granting the extended leave will allow time for treatment or recovery so that the employee may return to work. Merely requesting an indefinite leave is not sufficient.
Under all these statutes addressing medical leaves, while the position must be held open, the employer is free to use the services of a temporary employee in the interim. A full-time, regular employee may even be hired, but the same or a like position must be found for the disabled employee when the disabled employee is sufficiently recovered to return to work.
The primary thing an employer needs to know is that the issue of how long a position must be held open is complicated.
There is no bright line—it is highly fact-dependent. Don’t rely on a formula. Get legal advice from an attorney experienced in employment law and arm the attorney with all the facts.