Depending on the circumstances, the employee with a disability or the employee providing care to an individual with a disability may be entitled to a job protected leave under the Americans with Disabilities Act of 1990 (“ADA”), the Family and Medical Leave Act (“FMLA”), or both. Whether the job protected leave will be paid or unpaid depends on the employer’s leave policy.
Job Protected Leave Under the ADA
The ADA provides certain job-related protections to individuals with disabilities and individuals who have a relationship or other type of association with a person with a disability. Under the ADA, a disability is defined as a physical or mental impairment that substantially limits a major life activity. The individual’s medical condition must fit within this legal definition of a disability in order to receive the job protections granted by the ADA and typically, this is a very fact specific analysis.
One of the job protections provided by the ADA is that it requires employers to provide a reasonable accommodation to an employee with a disability, who requests such an accommodation. A reasonable accommodation is a change or adjustment that allows the individual with a disability to perform their job duties. A reasonable accommodation can be requested at any time. It can be requested during the application and interview process or at any point during the employment. There are no special forms that need to be filled out to request an accommodation, or specific words that need to be said. All an employee with a disability needs to do is notify the employer that a change is needed because of the individual’s disability. A reasonable accommodation request could be something as simple as an employee with a vision impairment notifying their employer that they have a hard time reading their computer screen, or an employee presenting the employer with a doctor’s note outlining work restrictions.
One common type of accommodation is to take time off work for treatment for a disability. A temporary leave of absence may be considered a reasonable accommodation, if it will allow the employee to return to their work following the treatment or care of their disability. An employee with a disability who needs a disability related leave of absence can request the accommodation by notifying the employer of the need for the leave or by providing the employer with a doctor’s not requesting the employee be granted time off due to their disability.
After a reasonable accommodation request is made, the employer and employee should engage in an interactive process, and work together to figure out the best options for the employee. The employer is allowed to request documentation from the employee if their disability is not obvious. The employer can also ask the employee to explain why they need a reasonable accommodation. The employee is not entitled to the accommodation that they prefer. An employer has complied with the ADA so long as they grant an accommodation that is reasonable.
Employers are not always required to grant an accommodation under the ADA. An employer does not need to grant a reasonable accommodation if it would cause an undue hardship to the employer. Also, if an employee cannot perform the essential functions of their job duties, even with a reasonable accommodation, then they are not entitled to job protections under the ADA. Employees who work for very small employers may not be entitled to job protections under the ADA as well, as it only applies to employers who have 15 or more employees.
Job Protected Leave Under the FMLA
Employees with disabilities may also be entitled to job protected leave under the FMLA. While the ADA provides job protected leave specifically for individuals with disabilities, the FMLA provides job protected leave to employees with a serious health condition, who cannot perform the functions of their job; to employees who need to care for their spouse, child, or parent who has a serious health condition; or for other qualifying reasons. A serious health condition under the FMLA is an illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment by a healthcare provider. An employee with a disability may have a health condition that qualifies as both a disability under the ADA and a serious health condition under the FMLA.
An employee who needs FMLA leave must provide notice to the employer, either written or oral, of their need for leave. The employee should provide the employer with enough information so the employer knows that it may be a job protected leave under the FMLA. The notice should be given to the employer at least 30 days prior to the FMLA leave if the employee knows about the need for leave far enough in advance. Otherwise, the employee should give the employer notice of the need for leave as soon as possible. The employer may ask for additional information to determine if it is an FMLA qualifying leave. They may require the employee to complete a certification to verify the dates and reason for leave. The certification may need to be completed by a healthcare provider. The employer may challenge the employee’s medical certification and may get a second or third opinion. The employer should then inform the employee whether they qualify for a job protected FMLA leave or if they are not eligible.
Not everyone is eligible for FMLA leave. The FMLA applies to all employers who are public agencies – such as federal, state, or local governments and their agencies – but only applies to private employers who have at least 50 employees. The employee must also have worked for the employer for at least 12 months, as of the first day of leave, and have worked for at least 1,250 hours during the 12 months immediately before the leave. If the individual’s employer is not covered by the FMLA or the individual is not otherwise eligible under the FMLA, they may still be entitled to job protected leave under the ADA.
Under the FMLA, an employee is entitled to up to 12 weeks of job protected leave in a 12-month period. The FMLA leave can be taken all at once or at different times over the 12-month period. Once 12 weeks of leave is taken, any additional leave needed within the 12-month period is no longer protected leave under the FMLA. Unlike the FMLA, job protected leave under the ADA does not have a set time limit and would be determined on an individual basis, based on what is considered a reasonable accommodation for each employee’s circumstances.
Some state legislatures have also enacted their own versions of the ADA and the FMLA. These state laws may be broader and provide job protected leave to even more individuals than the federal laws.
Job Protected Leave vs. Paid Leave
An employee may be entitled to job protected leave, but that does not mean they will be paid for that time off. An employer may provide an individual with a disability, a job protected leave, but there is no requirement that the employer also pay the employee for that time off.
Many employers have paid time off or paid leave policies. To the extent that an employee’s job protected leave fits within the employer’s paid leave policy, the policy should be applied towards the leave, just as it would for an employee who does not have a disability. An employee may also be able to be paid for their job protected leave through their short-term disability policy if they have one.
The bottom line: As an employee, you need to initiate the conversation with your employer when you are asking for leave or an accommodation, and must engage in the “interactive discussion” about the type of leave and/or accommodation you are requesting.
Please contact the Hamilton Law Firm LLC if you have any questions or are experiencing difficulties in the workplace as relates to a request for leave or accommodations.
ABOUT THE AUTHOR:
Ayesha Hamilton, Esq. is an attorney licensed to practice law in New Jersey, New York and Pennsylvania. She founded her law practice over 15 years ago and focuses on employment law. The Hamilton Law Firm team provides knowledgeable, compassionate and professional legal services to their individual and business clients from their offices located in Princeton, New Jersey. In addition to her law practice, Ayesha serves as a trustee on the board of directors for the New Jersey State Bar Association as well as the Mercer County Bar Association. She also serves on the Diversity Committee and the Commission on Racial Equity in the Law for the NJSBA and is the chair of the Mercer County Bar Association’s Diversity Committee and co-chair of the Civil Practice Committee. In addition, she serves on the employment law committee of the New Jersey Association of Justice and is also a member of the National Employment Lawyers Association-NJ. In 2020, she was appointed to serve on the State Bar’s Judicial and Prosecutorial Appointments Committee (JPAC) vetting judicial and prosecutor candidates for the NJ Governor’s office. Ayesha was named the NJSBA Solo/Small Firm Attorney of the Year for 2021.
Tel. (609) 945-7310 www.ahlawpc.com ahamilton@ahlawpc.com
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