Employers’ Rights and Responsibilities Regarding Medically Based Leaves, Absences, and Return to Work Issues

Category | Briefing Papers

Employers are often faced with legal issues or questions involving employees who have been absent or taken leaves for medical reasons. The legal implications of an employer’s actions regarding these employees are complicated by the numerous state and federal laws protecting employees’ and employers’ rights. Before taking any action, therefore, employers need to determine which of the following laws may apply:

· The Americans with Disabilities Act
· Minnesota Human Rights Act
· The Family Medical Leave Act
· The Minnesota Parental Leave Law
· Minnesota Workers’ Compensation Laws
· The Sick or Injured Child Care Leave Law

Employers facing issues related to absences and/or requests for leave must determine how the various laws interact to affect their rights and obligations concerning the employee’s continued employment.

I. THE STATUTORY CONSIDERATIONS.

A. The Americans with Disabilities Act.

Title I of the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq. (“ADA”) prohibits employment discrimination based upon disability. The ADA’s definition of the term “employer” is broad and includes persons engaged in industry affecting commerce and any agents of the person. The ADA clearly covers actions taken by managers, supervisors and forepersons. Notably, the ADA does not apply to employers with less than fifteen employees.

1. Definition of Disability.

The ADA’s protections extend to “qualified individuals with a disability.” For an individual person, the term “disability” is defined as:

1) A physical or mental impairment that substantially limits one or more major life activities;

2) A record of such impairment (for example, a history of cancer, heart disease, or other similar illnesses, but where the illness is cured, controlled, or in remission); and

3) Being regarded as having such an impairment.

Based upon this definition, employers often question whether temporary impairments are considered disabilities under the ADA. Under guidelines established by the Equal Employment Opportunity Commission (the “EEOC”), an impairment’s duration is a factor to consider to determine whether a person is disabled under the ADA, but duration is not, by itself, conclusive to the determination. The basic question is whether the impairment “substantially limits” one or more major life activities. In making this determination, the EEOC examines the impairment’s extent and impact on the individual’s activities, as well as its duration. Generally, pregnancy, broken limbs, concussions, appendicitis and influenza are not considered disabilities, but certain factors combined with any of these temporary conditions could give rise to the individual being considered as disabled. As discussed in later sections of this paper, however, there are other laws that protect rights of individuals with certain temporary conditions such as pregnancy.
2. Alcoholism/Illegal Drug Use.

The definition of disability has been construed to include alcoholism and certain mental illnesses. This has given rise to questions regarding an employer’s right to discipline employees for unacceptable conduct. While alcoholism is generally considered a disability under the Act, an employer may require that employees not be under the influence at the workplace. Accordingly, an employer may discipline a worker for violation of this standard so long as the employer treats the disabled worker no differently than a nondisabled worker violating the same policy. Similarly, an employer may discipline an employee with a mental disability for violating workplace policies so long as the discipline is the same as would be administered for a nondisabled employee violating the same policy.

There are certain exclusions under the ADA, which, despite the above definition, limit the ADA’s protections. For example, there is no ADA protection for individuals currently using illegal drugs, or using legal drugs illegally, including drug users with psychoactive substance use disorders resulting from such use and people suffering from compulsive gambling, kleptomania or pyromania.

3. Reasonable Accommodation.

Of significant concern to employers, the ADA requires that employers make reasonable accommodations for the known physical or mental limitations of qualified disabled individuals (both applicants and employees) who, with such accommodations, are able to perform essential job functions unless such an accommodation would result in undue hardship to the employer. While the disabled person, or someone acting on his or her behalf, must generally inform the employer of the need for an accommodation, the employer is required to notify the employee of its obligation to provide reasonable accommodations. The request for accommodation need not be in writing, nor must it conform to any set standard. An informal interactive process may be utilized to determine what reasonable accommodations, if any, are necessary. Reasonable accommodations can include modifications or adjustments to the job application process and to the workplace itself, including making accommodations so that the disabled individual is able to share the same benefits and privileges as nondisabled coworkers. Typically, those accommodations may include:

· Physical modifications to the workplace (ramps or removing raised thresholds);

· Reallocating nonessential job functions;

· Schedule modifications (changing start/end times; possible part-time work; work at home options; flexible scheduling to allow treatment or to meet other types of medical needs);

· Permitting the employee to work weekends to accommodate an unavailability during the week; and

· Flexible leave policies.

The above are examples of accommodations which may be utilized, but certain accommodations may not be appropriate in every situation. For example, for some positions the employee may be able to perform essential job functions at home, but other positions may require more supervision or interaction with other employees. Therefore, when drafting job descriptions, the employer should list regular attendance as an essential job function if that is the case.

The requirement to make reasonable accommodations is the same for all employees regardless whether they are part or full time workers. Employers are well advised to document all discussions regarding such accommodations.

An employer does not have to make reasonable accommodations if dong so would result in an undue hardship on that employer. Whether an accommodation will result in undue hardship is determined on a case by case basis and a blanket refusal to provide accommodations because of a claim that doing so would create undue hardship is not acceptable. In each case, factors of cost, difficulty, and disruption will be examined.

B. The Minnesota Human Rights Act.

The Minnesota Human Rights Act (“MHRA”) also prohibits discrimination based upon disability. Minn. Stat. §363.03, Subd. (1). The definition of “disabled” is substantially similar to the ADA’s definition. The MHRA covers employers with one or more employees; however, as with the ADA, under the MHRA, an employer is not required to provide reasonable accommodations unless the employer has 15 or more employees. Id., Subd. 1(6).

C. The Family and Medical Leave Act.

The Family and Medical Leave Act (“FMLA”) provides eligible employees up to a total of 12 weeks unpaid leave in a twelve month period for covered family/medical needs. Covered needs include:

1) Caring for newborns;

2) Caring for children placed with the employee for adoption or foster care;

3) Caring for a spouse, child, or parent with a serious health concern; and

4) For the employee’s own serious health concern.

The FMLA covers employers with 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding year. To be considered a covered employee, the employee must be employed for 12 months and have provided at least 1,250 hours of service during the previous 12 month period at a work site where 50 or more employees are employed within 75 miles of that worksite.

The FMLA provides certain protections to both employers and employees regarding leaves of absence. Employers may request a medical certification of the employee’s need for leave. If the employer questions the certificate, the employer may obtain the employee’s permission to contact the medical provider for clarification. Under certain situations, the employer may also require the employee to submit to an examination by a medical provider chosen by the employer.

Under the FMLA, the term “serious health concern” is defined as requiring in-patient care or continuing treatment by a health care provider. 29 U.S.C. §2611(11). Much of the litigation involving the FMLA centers on whether the health condition at issue is covered under the Act. Like under the ADA, conditions such as the common cold or the flu will not generally be considered a “serious health concern” under the FMLA, however, a very recent decision by the United States Court of Appeals has clarified that these illnesses are covered under the FMLA when the regulatory tests are met. If the injury or illness is a part of a workplace incident, workers’ compensation laws also may be relevant. While the FMLA’s definition of “serious health concern” may not be synonymous with the definition of injury or illness under the Workers’ Compensation Act, under many circumstances, both laws will apply. This definition is not necessarily synonymous with the term disability under the ADA or MHRA, but it may be. Under the FMLA, employers must continue to pay the employer’s portion of health benefits, but may require the employee to pay his or her normal share. Employers may require the employee to take accrued time off as part of the 12 weeks of leave, but the employer may not use lack of attendance involving a FMLA leave against the employee in considering promotions, bonuses, or layoffs. Similarly, an employer cannot require an employee to return to work on a part-time basis before completing the leave.

D. Parental Leave.

The Minnesota Parental Leave Law, Minn. Stat. §181.940 et seq. allows an employee six weeks of unpaid leave for a child’s birth or adoption. A covered employer is one with 21 or more employees working at a single workplace. An employee must be at least half-time for 12 consecutive months before the leave to qualify for Minnesota’s Parental Leave protections. Unlike the FMLA, under Minnesota’s Parental Leave Act the employer is not required to pay its portion of health care coverage, however, the employee may continue those benefits at his or her own expense during the leave period.

E. Sick or Injured Child Care Leave.

Minnesota law requires employers to allow employees to take the same personal sick leave to which the employees are entitled to care for sick or injured children. Minn. Stat. § 181.9413. The eligibility requirements are the same as for the Parental Leave Law.

II. INTERPLAY OF VARIOUS PROTECTIONS.

If you are a covered employer, the state and federal laws will interact to afford rights and protection for your employees. The FMLA is clear: the rights provided are cumulative of those rights provided by other laws. Accordingly, the ADA and MHRA may require you to provide, as a reasonable accommodation, unpaid leave in addition to the FMLA’s 12 weeks. While you cannot require an employee to return to work on a part-time basis before the 12 week FMLA period expires, you may be required to allow an employee to gradually work his/her way back to a full-time position under the ADA. Similarly, while the FMLA provides for only unpaid leave, the employee may be entitled to collect benefits under Minnesota’s Workers’ Compensation Act for a work related injury or illness.

A. Notices and Requests.

Like a person seeking a reasonable accommodation under the ADA, a person seeking a leave under the FMLA must generally give notice of the need for the leave. Unlike the ADA, the notice requirements under the FMLA are more formal. With a foreseeable need for a leave, the employee must give 30 days advance notice. Unforeseeable requests for leave must be made as soon as practicable. Like the ADA request, notice may be given by the employee or on the employee’s behalf. No notice is required under the Minnesota Sick or Injured Child Care Leave Act. Under the ADA, once an employee provides a request for reasonable accommodations, failure to engage in an interactive process to determine issues involving those accommodations may result in an ADA lawsuit. Likewise, proper informative procedures are important tools that can protect the employer. For example, failure to inform an employee of FMLA rights after a leave is requested may result in the employer’s inability to count the time of that leave against the 12 week limit under the FMLA.

B. Retaliation.

The ADA, MHRA, Parental Leave Law, and the FMLA provide strong protection against retaliation for an employee seeking protection under these laws. Similarly, Minnesota’s workers compensation laws provide severe penalties for terminating, threatening to terminate, or otherwise interfering with an employee’s right to obtain benefits. Minn. Stat. §176.82.

C. Right to Information.

Under the FMLA, employers are limited in their access to medical information to that which is sufficient for the certificate provided by the health care provider. Under the ADA, on the other hand, an employer may request medical information in certain situations for defined and limited purposes. For example, an employer may make inquiries or require an examination if there is a need to determine whether an employee is still able to perform essential job functions. Under the EEOC’s guidelines, “any medical examination or inquiry required of an employee must be job-related and justified by business necessity . . .” (EEOC Technical Assistance Manual §6.2.) The ADA also allows the employer to obtain sufficient information necessary to make determinations regarding reasonable accommodation issues. The MHRA requires that such examinations or inquiries be limited to assessing continuing ability to perform the job or the need to reasonably accommodate the employee as well as in cases required by local, state or federal law, including the Minnesota Worker’s Compensation laws.

It is important to remember that any and all medical information relating to employees must be kept segregated and confidential.

III. CONCLUSION.

For an employer, the effect of mistakenly assessing any of your obligations under the foregoing laws can be significant. Consequently, before taking any action regarding an employee’s request for leave or other accommodation, make certain your proposed action does not violate any of the employee’s rights under federal or state law. If you are a covered employer under more than one of the above-mentioned laws, make certain that you consider how these laws interact to provide additional protection to your employees. Above all else, remember that an ounce of prevention is worth a pound of cure not only in health care, but also in avoiding employment litigation.

This discussion is generalized in nature and should not be considered a substitute for professional advice. © FWH&T