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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
Today's Date: compliance with these laws is not impossible, but requires a cohesive approach to leaves of
Friday, 2/19/2010 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 relative
newness 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

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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 application
procedures, 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 employerís 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 current employees, 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 of
absence 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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"(A) Because of the birth of a son or daughter of the employee and in order to
care for such son or daughter.

(B) Because of the placement of a son or daughter with the employee for
adoption or foster care.

(C) In order to care for the spouse, or a son, daughter, or parent, of the
employee, if such spouse, son, daughter or parent has a serious health
condition.

(D) Because of a serious health condition that make the employee unable to
perform the functions of such employee."

29 U.S.C. Section 2612(a) (emphasis added).

Section (D) concerns us here. The FMLA essentially provides a leave of

absence policy for sick employees by operation of law. In the case of an
employee who wishes to take a leave of absence for a serious health condition,
federal law protects the leave. The employer is not required to provide a paid
leave of absence, if it "would not normally provide any such paid leave". 29
U.S.C. Section 2612(d)(2)(B). Employers should, therefore, have a written leave
of absence policy designating leaves as unpaid, except where the employer
chooses, as a matter of policy, to provide paid leaves. If employees are
provided paid vacation time, paid personal leaves, paid sick leave, or paid
medical leave, the employer may require (and the employee may insist) that
those leaves be taken as part of the 12-week leave provided by the FMLA.
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b. Certification Of Serious Health Conditions

If an employee requests a leave because of his or her own serious health

condition (or that of a family member), the employer may request "certification",
i.e. a doctor's note with expected dates of duration of the condition
necessitating the leave. The Department of Labor assumes that inquiries
regarding the employee's leave may
only be made to the employee. The request for "certification" must then be
made to the employee, not directly to a treating physician, for example. The
employer may require a second opinion, and if the first opinion and the second
opinion conflict, the employer may require a third opinion, which is binding.
Section 2613.

c. Maintenance Of Group Health Benefits

During an FMLA leave of absence, an employee is entitled to have his or her

coverage under a group health plan maintained. If the employer paid for the
coverage before the leave, the employer must pay for the coverage during the
leave. 29 U.S.C. Section 2614(c). This obligation stops if the employee informs
the employer during the leave that he or she will not be returning to work, in
which case the employer has certain recoupment rights with respect to group
health plan benefits that have been maintained.

The Department of Labor ("DOL") interprets "group health benefits" to include

life insurance. DOL has stated: "For other benefits, such as elected life
insurance coverage, the employer and the employee need to make
arrangements so that the benefits may be maintained during periods of unpaid
FMLA leave." Labor Dep't Guidance Memorandum, July 26, 1993.

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