Steering Clear of Coordination-of-Leave Nightmares

Coordinating compliance with leave and disability-rights statutes remains a challenge for HR professionals, who must ensure employees are permitted the benefit of the most protective, applicable statute.

Many HR professionals know all too well that that the Family and Medical Leave Act (FMLA) is not the whole picture.

On the other hand, “it is a fairly common mistake for employers to think they are through if an employee is not eligible for FMLA leave, or if the employee’s FMLA leave entitlement has been exhausted,” said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. That is not necessarily the case, and this mistake can open employers up to liability under the Americans with Disabilities Act (ADA) and other applicable laws, she cautioned.

ADA leave may be required if the employee is not yet eligible for FMLA leave, FMLA leave has been exhausted, or the employer meets the ADA threshold but not the FMLA coverage threshold, said Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich.

FMLA and ADA Requirements

The FMLA is extremely technical, Shea said.

She explained that generally, an employee would not be eligible for FMLA leave if they: 1) have not been employed for a 12-month period before the beginning date of the leave (and this 12-month period does not have to be continuous); 2) did not work 1,250 hours in the 12-month period before the beginning date of the requested leave; or 3) had already exhausted their FMLA leave allotment of 12 weeks for the current 12-month period. To be eligible for FMLA leave, an employee also must work at a site where the employer has at least 50 employees within 75 miles. The FMLA applies to employers with 50 or more employees.

The ADA, by contrast, is flexible, Shea said. It doesn’t have any minimum periods of service for employees to be covered. Employers covered by the ADA should work with qualified individuals with disabilities and should engage in conversations with them to identify possible accommodations, which most courts have ruled includes leave.

The ADA applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or previous year. Employers with 16 to 49 employees in most jurisdictions would be required to give a leave of absence as a reasonable accommodation under the ADA, but not FMLA leave, said Marcy Frost, a self-employed attorney in St. Louis Park, Minn.

Nonetheless, the 7th U.S. Circuit Court of Appeals—whose jurisdiction encompasses Illinois, Indiana, and Wisconsin—has said the ADA is not a leave law, Shea noted. In a 2017 case, the court held that an employer was not required under the ADA to grant leave as a reasonable accommodation after an employee’s FMLA entitlement had been exhausted.

However, the U.S. Equal Employment Opportunity Commission (EEOC) has taken the position that employers may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as an ADA reasonable accommodation. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it and the leave does not create an undue hardship for the employer, according to the EEOC. This is the case even when FMLA leave has been exhausted or leave has been used up under a workers’ compensation program, the EEOC states in its 2016 guidance, “Employer-Provided Leave and the Americans with Disabilities Act.” (FMLA leave is unpaid.)

In general, “an employer may have to consider providing an employee with a leave of absence as a reasonable accommodation instead of FMLA leave if the employee is not eligible for FMLA leave, such as the employee is new and has not worked 1,250 hours or 12 months,” said Charles Thompson IV, an attorney with Ogletree Deakins in San Francisco.

FMLA Serious Health Condition vs. ADA Disability

In addition to an employer having to consider leave as a reasonable accommodation if the employee has exhausted their FMLA leave, an employer may have to consider reasonable accommodation leave if the employee’s ADA disability is not an FMLA serious health condition, Thompson said.

The ADA Amendments Act of 2008 made it easier for employees to prove that they have ADA disabilities.

But an “employer should remember that the definition of ‘disability’ under the ADA and related laws can be more demanding than the definition of a ‘serious health condition’ under the FMLA,” Shea said.

For example, an ear infection that is expected to clear up in two weeks is not a disability under the ADA or most state disability laws, she said. However, if the employee goes to a doctor one time and gets a 10-day prescription for antibiotics, the ear infection would be an FMLA serious health condition, meaning the employee must be allowed to take FMLA leave if they are eligible.

FMLA regulations split the term “serious health condition” into two major subdivisions, Frost explained. The first is inpatient care, which requires an overnight stay in a hospital or similar facility. The second is incapacity and continuing treatment.

There are five different types of incapacity and continuing treatment, she noted:

1. Incapacity lasting more than three consecutive calendar days and treatment.
2. Pregnancy and prenatal care.
3. Chronic conditions.
4. Permanent or long-term conditions for which no effective treatment exists.
5. Conditions requiring multiple treatments.

Frequent Sick Days

If an employee is out sick frequently, but the FMLA, the ADA, or other laws do not apply, the employer should follow its own internal policies regarding medical documentation of absences, Shea said.

“Another alternative would be to allow a reasonable number of absences to be excused without documentation but to request documentation at the point that the employee is at risk of being penalized for subsequent absences,” she said.

Intermittent Leave

Intermittent leave is available not only under the FMLA but also the ADA, Frost noted.

“The biggest difference between ADA and FMLA intermittent leave is the undue burden standard in the ADA,” she said. “The FMLA requires that the employer provide intermittent leave when it is deemed necessary by the health care provider, regardless of the difficulties this poses for employers.”

The ADA does not require a reasonable accommodation that would result in an undue hardship on the employer. However, the “undue hardship” standard can be difficult for employers to meet.

Under the FMLA, intermittent leave is subject to the 12-week limit each 12-month period.

“The ADA has no time limits” on intermittent leave, Frost said. “As long as the accommodation is needed and remains reasonable, it must be provided,” so long as there is no undue hardship. But many courts have held that when employees have been out for continuous leave, the ADA doesn’t require indefinite time off.

Confronting Leave Abuse

“As with any intermittent leave, abuse is possible and difficult to manage,” Frost said.

“If an employee who is not eligible for FMLA leave needs time off in excess of the employer’s normal non-FMLA leave policies and practices, the employer should get confirmation from the employee’s health care provider that the leave is related to a medical condition that could qualify as a disability within the meaning of the ADA,” Shea said. “Insisting on that documentation is not a guarantee against abuse, but it does make abuse less likely.”

Frost recommended two different ways to handle potential leave abuse within the ADA’s requirements.

First, employers should ensure that the leave is consistent with the disability. “If the employee’s absences are suspect, the employer can request that the health care provider explain why absences are required and the expected frequency,” she said. “Sometimes, the request alone will encourage the employee to limit absences to when they are necessary. If not, the medical documentation might indicate that the frequency of absences is inconsistent with the condition, in which case the employer can begin a disciplinary process.”

Another option is to evaluate whether the intermittent leave has become an undue burden to the employer, Frost said. “The undue burden standard is high, but in the right circumstances it can render a requested accommodation unreasonable,” she explained.

Organizations may argue that granting intermittent leave is an undue burden, particularly if it is unpredictable, Welch said.

Employers also might monitor the intermittent leave to look for patterns of abuse, Thompson noted.

Other Challenges

“The greatest challenge employers face in coordinating leave is keeping track of everything,” Frost said.

 “The presence of state and local disability rights and leave laws, including state paid-leave laws, can complicate things even further,” Shea cautioned.

The FMLA and state laws have time limitations that must be tracked, Frost noted. An employee can exhaust those leaves but still be entitled to leave under the ADA or a state anti-discrimination law. “I recommend that employers keep a leave-of-absence log for difficult situations, so that it is not necessary to go back through leave authorization and payroll records to determine the status at any given time,” she said.

Another challenge is evaluating return-to-work issues, Frost added. An employee who has exhausted FMLA leave cannot be required to return to work if leave or some other accommodation is still appropriate under the ADA or a state disability law. Workers’ compensation laws may require that the employee be returned to work in a different position than would be required under the ADA or state disability law, Frost added.

Meanwhile, the position someone returns to under the Uniformed Services Employment and Reemployment Rights Act can be impacted by the length of the leave, which is not a factor under other laws, she said. The employer has obligations to facilitate a service member’s ability to perform a job, such as by providing retraining, that do not apply under other laws.

In addition, accommodations permitted by the Pregnant Workers Fairness Act, including leave, add more complexity to leave coordination, Welch said.

Employers’ Leave Obligations

“The employer must look at each type of concurrent leave separately and ensure that the employee gets all of the unique benefits of each type of leave,” Frost said. “Mistakes are made when employers treat exhaustion of a specific leave as the sole determinant of when an employee must return to work and the consequences of failing to return.”

When leave is coordinated properly, “[t]he employee gets the best possible treatment under each of the applicable laws,” she explained.