When workers need time-off from their jobs to deal with an injury or illness, they typically need their jobs to be waiting for them when they are ready to return to work. Here I give an overview of the most important laws that protect workers’ rights to take time-off to deal with their own sicknesses or injuries, or to care for family members, and ultimately to return to their jobs. No universal protections apply to workers in the United States; the laws discussed here apply only to some workers, in some situations.1 Nevertheless, advocates will find that these laws can be powerful tools to preserve their clients’ jobs. Primarily I focus on leaves arising from a worker’s own serious health condition and on the worker’s right to take leave to care for a family member.
When a Worker Is Sick
The federal Family and Medical Leave Act of 1993 will typically be the best source of job preservation for workers on sick leave.2 The Act and its implementing regulations are clearly designed to safeguard a worker’s right to take time-off to tend to illness or injury and to return to work once the worker’s need for leave is over—allowing advocates to make a clear, straightforward case that a worker is entitled to return to work.
Advocates should consider whether the Family and Medical Leave Act applies whenever a client has been fired for lateness or absenteeism. In many situations, a worker would qualify for protection even if neither the worker nor the employer recognized that the Act applied. The employer may be obliged to preserve the worker’s job so long as the employer had sufficient notice that the absence was needed for a reason that qualifies for protection under the Act.3 Protected “leaves” can include very short periods of time, even less than a day.4 The Act overrides no-fault disciplinary policies so that a protected leave may not count as absenteeism under such a policy or form part of the reason for a termination.5
Advocates should consider whether the Family and Medical Leave Act applies whenever a client has been fired for lateness or absenteeism.
I also examine the right to leave time under the Americans with Disabilities Act (ADA) and related federal and state antidiscrimination laws. These laws cover more workers and can allow for longer leaves, but the entitlement to leave time is less clear than it is under the Family and Medical Leave Act. Advocates may find that the antidiscrimination laws are not as conducive to quick, informal dispute resolution because they require a case-by-case analysis of the degree to which leave would burden the employer. By contrast, under the Family and Medical Leave Act the entitlement to leave is more clear-cut.
The Federal Family and Medical Leave Act. The intent of the Family and Medical Leave Act is to permit workers who have been employed for a year or more in a medium- or large-sized company to take up to 12 weeks of leave to deal with certain family emergencies, such as a serious health condition affecting the worker or a close family member. The Act also makes illegal an employer’s harassing or discriminating or retaliating against a worker who intends to take, or has taken, medical leave to which the worker is entitled under the Act.6 A recent study found that women were more likely to take leave under the Act than men and that low-income workers are nearly as likely to take leave under the Act as middle- or high-income workers.7
Eligibility. For the worker who takes a sick leave to qualify for job protection under the Family and Medical Leave Act, both the employer and the worker must meet certain criteria, and the cause of the sick leave must qualify as a serious health condition:
- Employer coverage: The Family and Medical Leave Act covers employers that fall into at least one of three categories: the employer employs at least 50 people for at least 20 weeks in the current or preceding calendar year; the employer is a “public agency”; or the employer jointly employs workers who are covered by the Act.8 Separate entities may be considered an “integrated employer” under the Act if their operations are sufficiently interwoven, in which case all of their employees are combined when determining coverage.9
- Worker coverage: To qualify for protection under the Family and Medical Leave Act, the worker must have worked for the employer for at least 12 months.10 The months need not be consecutive; employment in past years can be counted.11 The worker must also have worked for the employer for at least 1,250 hours during the 12-month period immediately preceding the start of the leave period (an average of 25 hours for 50 weeks).12 The employer, or joint employers, must be employing at least 50 employees within 75 miles of the employee’s work site when the employee gives notice of the need for the leave.13
- Covered health conditions: Workers are covered by the Family and Medical Leave Act only if they take leave for a qualifying reason. Workers who must take sick leave must be prepared to show that the leave time is necessitated by a serious health condition that makes them unable to perform the functions of their jobs.14 A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either inpatient care or else continuing treatment by a health care provider.15 If a worker has a health condition that requires at least one overnight stay in a medical facility, then that condition qualifies as a serious health condition for as long as it results in “incapacity,” as defined by the Act.16 The worker also has the right to take leave needed for subsequent treatments.17 A condition that is not serious enough to require inpatient care may still qualify as a serious health condition if it involves continuing treatment by a health care provider.18 This can include any of several different situations, as defined by the regulations.19 Only one of these situations requires absences of more than three days—thus very short-term absences are often covered.
Protection. With a few exceptions, so long as a covered worker properly requests leave and gives notice to the employer, the worker while incapacitated is entitled to take up to 12 weeks of unpaid leave in a 12-month period. The worker has the right to be restored to the worker’s old job or an equivalent job, along with all employee benefits that the worker was entitled to as of the date of leave once the worker is able to return to work as long as the worker returns within 12 weeks.20
To qualify for protection under the Family and Medical Leave Act, the worker must have worked for the employer for at least 12 months.
- Duration of leave: Covered workers are entitled to take up to 12 weeks of leave, including treatment and recovery time, for as long as the worker has a covered health condition.21 Employers may not deny a valid leave request, although they may require certain notice and documentation. The employer may not require the worker to come back to work by offering a light-duty job.22 The employer defines the 12-month period within which a worker may take her 12 weeks.23 The worker may take 12 weeks in each such 12-month period as long as the worker meets all conditions of eligibility at the start of each leave sought. Workers need not take leave all in one continuous period; the Act protects workers’ right to take intermittent leave or a reduced daily schedule.24 Workers may also take intermittent leave or reduced schedules when they are dealing with a chronic serious health condition, even if they are not receiving treatment from a health care provider during each leave.25
- Restoration to job: The Family and Medical Leave Act does not guarantee that the worker will be able to return to precisely the same job. Rather, the worker must be returned either to the same job or to an equivalent position. The worker is entitled to such reinstatement even if the old position has been filled by someone else, and even if the job has been restructured to accommodate the worker’s absence. The employer has the choice, however, of whether to move the replacement worker and reinstate the worker who was on leave to the exact same job, or move the worker to an equivalent position.26
- Exceptions to job restoration: A worker has only the same rights to remain employed that the worker would have had if the worker had not taken leave. Thus the employer need not return the employee to work if the employee would have been terminated during the leave period. The employer has the burden to show that the worker would not otherwise have been employed at the time reinstatement is requested, without regard to the leave.27 If the worker would have been laid off because her specific job was eliminated, the employer is not obligated to offer an equivalent job.28 There are other exceptions to the job restoration requirement under the Family and Medical Leave Act, such as if the worker had been hired only for a specific term or particular project, or was unable to perform an essential function of the job at the end of 12 weeks, or failed to submit a properly requested fitness-for-duty certification before returning, or was a high-salary “key employee.”29
- Employee benefits and accrued paid leave: When a worker is on Family and Medical Leave Act–protected leave, the employer must continue exactly the same health benefits as if the worker were not on leave. Accordingly, the worker may have an obligation to make premium payments that had been deducted from the worker’s pay.30 Entitlement to other types of benefits while on leave is determined by the employer’s established policy regarding benefits for workers on other types of leave (e.g., vacation).31 Family and Medical Leave Act–covered leave is unpaid leave. Employers may, however, require that workers on protected leave use up any accrued vacation or sick time, or other paid personal leave, during their leave. The worker also has the right to choose to use accrued paid leave, so long as the worker follows the normal procedures for taking such leave.32Thus the Act allows workers to combine job security with paid leave.
Ensuring Family and Medical Leave Act Rights. To take leave under the Family and Medical Leave Act, the worker must put the employer on notice that leave is needed for a reason that qualifies under the Act. The worker need not use any particular words, or even mention the Act—the worker need only give verbal notice, 30 days in advance or else as soon as practicable, that the worker needs to take leave which may qualify for protection under the Act.33 Once the employer is on notice, the employer is responsible for ascertaining whether the worker is entitled to take leave—at which point the worker must offer enough explanation to allow the employer to make a determination.34 Unless there are unusual circumstances, the employer may require workers to follow the employer’s customary procedures for requesting leave, as long as those procedures do not require the workers to give notice sooner than is practicable.35
Employers may require that workers submit a certification of the need for leave from the worker’s health care provider—including an estimate of the frequency and duration of necessary leave.36 The worker must submit the requested certification within 15 days, if practicable. If a certification is incomplete or insufficient, the employer must give the worker 7 days to cure the deficiency; the employer may refuse to grant leave if a complete and sufficient certification is not eventually submitted.37 The employer may also request recertification every 30 days.38
Employers have no obligation to remind workers on leave when they are nearing the end of their protected 12 weeks. Employers must, however, give to the worker a written notice confirming that the worker’s leave is designated specifically as a Family and Medical Leave Act–covered leave and, if how long the leave needed is known, stating how much time will be counted against the worker’s 12-week entitlement for the year.39 Employers may require workers on leave to report periodically on their status as well as to submit a fitness-for-duty certification before reinstatement.40
Remedies for Violations. An employee whose rights under the Family and Medical Leave Act are violated can sue the employer—including any public agency other than the federal government—in federal district court. Workers can recover lost wages, interest, attorney fees, and court costs, as well as an amount equal to lost wages and interest in liquidated damages if willfulness is shown.41 Workers do not have to go through any administrative complaint process before filing suit, but they must file suit within two years of the violation or three years if the violation was willful.42 Alternatively a worker can file a complaint with the U.S. Department of Labor, which may investigate and recover damages for the worker.43 However, detailed demand letters that assert violations of the Act can often secure reinstatement without formal proceedings.
State Medical Leave Acts. A number of states have their own laws providing job protections for people on medical leave.44 In general, these laws expand the circle of people for whom the worker can take leave (e.g., domestic partners) to provide care. A few jurisdictions, however, have laws expanding employer coverage or the length of leave available or both. Washington, D.C., provides for up to 16 weeks of leave within a two-year period, and the law covers all employers with at least 20 employees.45 In the state of Washington, if the worker takes leave under the federal law due to pregnancy or childbirth-related disability, she can use an additional 12 weeks of leave under state law after she has used up her 12-week entitlement under the federal law.46 Vermont covers companies with at least 15 employees.47 Oregon provides 12 weeks of leave for workers at companies with at least 25 employees.48 California covers all public employers without regard to size.49 Maine covers employers with at least 15 employees.50
Two states, California and New Jersey, require that employees be allowed to take paid family and medical leave time, with payments made by the state from a public fund. In 2012 Connecticut became the first state to require that some employers grant paid sick leave to workers who have worked long enough to accrue sick time.51 Several municipalities around the country have also enacted local paid sick leave laws.
ADA and Rehabilitation Act. The Americans with Disabilities Act of 1990 requires that employers provide reasonable accommodations to qualified individuals with disabilities.52 An identical obligation is imposed on federal executive branch agencies, and on public and private employers receiving federal financial assistance, by the Rehabilitation Act of 1973.53 The ADA is primarily referred to here, but the Rehabilitation Act enshrines the same principles of reasonable accommodation.
Workers who qualify for protection under the ADA may be entitled to a period of leave as a reasonable accommodation. Thus some workers may be entitled to take leave when they do not qualify for Family and Medical Leave Act–covered leave or when their 12-week entitlement under the Family and Medical Leave Act has been used up. The ADA applies at all times, without regard to the worker’s length of employment. The ADA also makes illegal an employer’s coercing, intimidating, threatening, or interfering with a worker in the exercise, or the attempt to exercise, rights to which the worker is (or believes in good faith to be) entitled under the ADA.54 Advocates should be aware that the ADA was amended in 2008 to broaden its reach, and pre-2009 case law may reflect an unduly restrictive view of the law’s scope.55
Eligibility. For the worker who takes sick leave to qualify for job protection under the ADA, both the employer and the employee must meet certain criteria, and the worker must meet the definition of a “qualified individual with a disability.”
- Employer coverage: The ADA applies to all employers (other than the federal government, Indian tribes, and bona fide private membership clubs) who have had 15 or more employees for at least 20 weeks in the current or preceding calendar year.56 The federal government, and state government, local government, and private programs that receive federal financial assistance, are covered by Section 504 of the Rehabilitation Act of 1973.57
- Worker coverage: There is no minimum number of hours worked to qualify for protection under the ADA. The worker must simply qualify as an employee, or a would-be employee, under the common-law agency test of employment.58 The ADA covers part-time as well as full-time employees, and its antidiscrimination provisions also apply to job applicants.59
- Qualified individual with a disability: The ADA protects those employees who meet the definition of a “qualified individual with a disability,” meaning that they can perform the essential functions of the job with or without an accommodation. Disability, for purposes of the ADA, is a physical or mental impairment that substantially limits one or more major life activities.60 The term “substantially limits” should be “construed broadly in favor of expansive coverage,” and “whether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis.”61 Short-term, minor illnesses usually do not qualify for protection. “Life activities” are defined quite broadly to include, inter alia, caring for oneself, sleeping, walking, standing, sitting, reading, concentrating, and working, as well as the operations of any major bodily function.62
Leave Protected by the ADA. Title I of the ADA requires that covered employers provide reasonable accommodations to their employees. The statute provides that reasonable accommodations for employees “may include ... part-time and modified work schedules ... and other similar accommodations.”63 An employer does not have to grant the worker’s specific desired accommodation, but only an accommodation that could overcome the worker’s limitations.
Nearly all states have antidiscrimination laws that provide protections against disability discrimination; these usually include an entitlement to reasonable accommodation.
A continuous period of leave, or intermittent leave, that a worker needs to deal with a medical condition may be an appropriate accommodation under the ADA; covered employers must offer leave to workers who need it as an accommodation unless, in a particular circumstance, the leave request would pose an “undue hardship” to the employer.64 Leave extended as an accommodation need not be paid leave; instead employers must let the worker use accrued vacation, sick, or other paid leave time, and the rest of the leave may be unpaid leave.65
Leave requests for a year or more may be reasonable accommodations, although this usually is true only for large employers with enough staff and other resources that they can cover an employee’s job duties for a long time without sustaining an undue hardship.66 That a leave request lasting 18 months or more would be found reasonable by a court is very unlikely, and employers are generally not required to approve indefinite or open-ended leaves with no estimate of the worker’s expected return.67 Courts have also found that medical leave was unreasonable where the worker’s leave was highly erratic and unpredictable, where the leave was not likely to ameliorate the worker’s condition and enable the worker to perform the job on returning to work, and where the worker had been hired to perform a specific task in a finite period of time.68
The employer must hold the worker’s job open for the worker until the worker is able to return, unless doing so would impose an undue hardship on the employer. In that case the employer must see whether there is a vacant job to which the worker can be reassigned once the worker is ready to return.69 When the employee who is covered by the ADA is ready to perform the essential functions of the job, with or without an accommodation, the employee is entitled to return to work; the employer may not insist that, before returning, the employee be able to perform all minor and inessential aspects of the job.70
Ensuring ADA Rights. Employers must make reasonable accommodation for the “known physical and mental limitations” of an otherwise qualified worker, so long as the accommodation does not impose an undue hardship on the employer.71 The worker does not have to use any particular terms or mention the ADA specifically, but the worker must put the employer on notice that the worker has a disability which qualifies for protection under the ADA and that an accommodation is needed.72
Once the right to an accommodation has been established, the worker and the employer must engage in a flexible, interactive process to agree on the appropriate accommodation.73 The employer has the ultimate discretion to choose between accommodations, so long as the accommodation chosen is effective in enabling the worker to perform the essential functions of the job.74
Remedy for Violation. Workers whose rights under the ADA have been violated must file a charge of discrimination with the Equal Employment Opportunity Commission, or with a state or local fair employment practices agency.75 Charges must usually be filed within a few months of the date of the discriminatory act; charges with the federal commission must be filed within 300 days. The commission may investigate and pursue the matter on its own, help the parties reach a settlement at mediation, or may issue a notice giving the worker the right to file suit in court.76 Workers who prevail in court may be awarded reinstatement or compensatory damages, punitive damages, and attorney fees or all four.77
Leave Under State-Level Antidiscrimination Laws. Nearly all states have antidiscrimination laws that provide protections against disability discrimination; these usually include an entitlement to reasonable accommodation.78 These laws may protect those not covered by the ADA. For example, they may apply to companies with fewer than 15 employees. The Washington state Law Against Discrimination applies to employers with 8 or more employees and requires reasonable accommodations.79 The California Fair Employment and Housing Act requires that employers with 5 or more employees extend reasonable accommodations.80 The Pennsylvania Human Relations Act requires reasonable accommodations by employers with 4 or more employees.81 State laws against disability discrimination are generally interpreted to apply the same legal principles as the ADA, and they ensure the right to sick leave as a reasonable accommodation in the same manner as federal law.82
Interaction of Family and Medical Leave Act and ADA. The ADA and its state disability law equivalents are more likely to apply at smaller companies than the Family and Medical Leave Act since the ADA requires that the employer have at least 15 employees, and the state disability discrimination laws often apply to companies with fewer than 10 employees, while the Family and Medical Leave Act requires at least 50 employees. The disability discrimination laws also require reasonable accommodations as soon as the worker starts the job, whereas the leave laws generally require the worker to have been on the job for months, or even a year, before the leave entitlement vests. Advocates should note, however, that the smaller a company is, the more likely it is able to claim that granting a worker leave would pose an undue hardship.
A medical condition that qualifies as a serious health condition under the Family and Medical Leave Act but is expected to be resolved quickly may or may not qualify as a disability under the ADA or state disability discrimination laws. The duration of an impairment is one factor in determining whether the impairment is covered as a disability under the ADA, but “impairments that last only for a short period of time ... may be covered if sufficiently severe.”83
In many situations a worker is covered by both sick leave law and antidiscrimination law. Employers who are covered by both the Family and Medical Leave Act (or an equivalent state leave law) and the ADA (or an equivalent state disability discrimination law) must determine a worker’s rights separately under both laws.84 Workers who qualify for protection under both acts are fully entitled to the protections of both, so that the protections in one act may remedy some of the drawbacks of the other.85 The Family and Medical Leave Act assures covered employees of 12 weeks of leave in a 12-month period, while leave under the ADA is whatever is “reasonable” and not an undue hardship. Accordingly the maximum permitted ADA leave might be less than 12 weeks for a worker at a small company or in a sensitive position but might be far more than 12 weeks at a big corporation.86
When a Family Member Is Sick
The ADA and related disability discrimination laws do not create any duty of employers to permit leave for workers to care for another person with a disability or other medical condition—only the worker’s own disability must be accommodated under disability discrimination law.87 Workers need to look to the Family and Medical Leave Act, and the state leave laws, for protection for a leave to care for a family member. (See box: Checklist for Family and Medical Leave Act Coverage for Sick Leave.)
The rules for coverage under the Family and Medical Leave Act dealing with the size of the company, location of the work site, and worker’s tenure at the company are the same with regard to leave to care for a family member as they are for leave to deal with the worker’s own health condition. The requirements for a “serious health condition” under the Act—including that the condition requires either inpatient care or continuing treatment—must all be met by the family member’s medical condition, but there is no requirement that the health condition must affect the family member’s ability to work; indeed, covered family members need not be employed.88
Under the Family and Medical Leave Act, a worker may take leave to care for a parent, spouse, or son or daughter under 18 who has a serious health condition. Workers may also take leave to care sons or daughters who are 18 or older, in certain cases: the adult children must have a disability, as defined by the ADA, and the disability must leave them unable to care for themselves, and the adult children also must have a serious health condition as defined by the Family and Medical Leave Act.89
Grounds for leave to care for a family member can be somewhat broader than the grounds for caring for oneself. The worker need only be prepared to present documentation, if requested, that the worker is needed to “care for” the family member, not necessarily to treat or tend to the family member’s serious health condition.90 If the health care provider confirms that the worker is needed to provide psychological care, including comfort and reassurance benefiting the family member, or to substitute for others who would normally provide care, or to make arrangements for changes in care, that is a sufficient medical certification. Employers may not require that the worker be the only individual or family member available to care for the family member.91 The Family and Medical Leave Act also provides for up to 6 months of leave in a 12-month period for a worker to care for a covered current member of the armed services (including National Guard and Reserves), or a member on the temporary disability retired list, with a serious injury or illness incurred in the line of duty.92 The worker must be the spouse, son, daughter, parent, or nearest blood relative of the injured servicemember.93
Certain state laws expand the range of people for whom a worker is entitled to take leave. A covered family member includes a civil union partner or domestic partner under state leave law in California, Connecticut, Maine, New Jersey, Washington, and Wisconsin; Washington, D.C., also covers anyone with whom the employee lives and has a committed relationship, while Hawaii covers any “reciprocal beneficiary.”94
Workers and their advocates should be prepared to assert the right of workers to take sick leave under all laws that apply. Even where the employer has not acknowledged a worker’s rights to take sick leave and to return to work at the end of the leave, federal and state laws may well protect those rights. Workers should be advised to put their employers on notice that they need leave and that they meet the criteria for an entitlement to take that leave, and to communicate a clear desire to return to work when their health permits. While not all workers are protected, many workers are entitled to take extended sick leave under federal or state leave laws or antidiscrimination laws, and they should be prepared to establish that they are protected under any of the several laws that might apply to them.
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Checklist for Family and Medical Leave Act Coverage for Sick Leave
1. Is the Employer Covered? (Any one)
Public Employer (not federal)
50+ employees each day for 20 weeks in current or preceding year
Secondary employer jointly employing FMLA-covered workers
2. Is the Employee Covered? (All three required)
Employer employs 50+ employees within 75 miles of work site
Employee worked 12+ months for employer (need not be consecutive)
Employee worked 1,250+ hours for employer in last 12 months
3. Is it a “Serious Health Condition”? (Any one)
Overnight inpatient care in hospital, hospice, or residential medical facility
More than 3 consecutive full calendar days of incapacity and either
treatment on at least two occasions by health care provider (within 7 and 30 days of incapacity) or
one occasion of treatment by health care provider (within 7 days
of incapacity) with continuing treatment
under [health care provider’s] supervision
Any incapacity for pregnancy or prenatal care
Any incapacity for chronic serious health condition (i.e., diabetes, epilepsy) (with at least two visits to health care provider per year)
Incapacity for long-term untreatable condition
(i.e., Alzheimer’s disease, severe stroke)
Incapacity due to multiple treatments for condition that would require more
than 3 days’ absence if left untreated (i.e., cancer treatments, dialysis)
©2013 by Sharon M. Dietrich, Community Legal Services. Reproduced with permission.
1 I use the terms “employee” and “worker” interchangeably. Many employers improperly classify their workers as “independent contractors” to claim that the workers are not entitled to the benefits due to true employees. Even if they are not referred to as “employees” by their employers, however, many workers nonetheless qualify for protection under the laws described here.
2 Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–2654.
3 29 C.F.R. § 825.301(a)–(b) (2013).
4 Id. § 825.202.
5 Id. § 825.220(c).
6 29 U.S.C. § 2615; 29 C.F.R. § 825.220.
7 U.S. Department of Labor, Family and Medical Leave in 2012: Technical Report 64–65 (Sept. 2013) (prepared by ABT Associates).
8 29 U.S.C. § 2611(4)(A). “Public agency” includes the U.S. government, state governments, and political subdivisions of states, U.S. territories and possessions, or an agency of the federal or state government or a political subdivision of a state, or any interstate governmental agency (29 C.F.R. § 825.108(a) (2013)). Note that there are different rules for federal government workers, depending upon which branch or agency employs them (29 C.F.R. § 825.109).
9 29 C.F.R. § 825.104(c)(2).
10 Id. § 825.110(a)(1). The Family and Medical Leave Act uses the “suffer or permit to work” test set out in the Fair Labor Standards Act to determine who qualifies as an employee (Family and Medical Leave Act, 29 U.S.C. § 2611(3); Fair Labor Standards Act, 29 U.S.C. §§ 203(e), (g), 201–219).
11 29 C.F.R. § 825.110(b).
12 Id. § 825.110(a)(2).
13 Id. §§ 825.110(a)(3) & (e), 825.111(c).
14 Id. § 825.112(a)(4).
15 Id. § 825.113(a).
16 Id. § 825.113(b).
17 Id. § 825.114.
18 Id. § 825.113(b). For a definition of “health care provider,” see id. § 825.125.
19 Id. § 825.115 (describing various circumstances that qualify as continuing treatment).
20 See, e.g., Hoge v. Honda of America Manufacturing, 384 F.3d 238 (6th Cir. 2004) (restoration of job is required as soon as employee is able to perform essential functions of job; employers may neither delay nor deny reinstatement unless one of law’s specific limitations or exceptions applies).
21 29 C.F.R. § 825.200(a) (2013).
22 Id. § 825.220(d).
23 Id. § 825.200(b).
24 Id. §§ 825.202, 825.203.
25 Id. § 825.202(b)(2).
26 Id. §§ 825.214, 215(e)(1). The job offered at reinstatement “need not be the same position the employee held before she took leave” (Green v. New Balance Athletic Shoe Incorporated, 182 F. Supp. 2d 128, 136 (D. Me. 2002)). An “equivalent position” is one that is “virtually identical” to the old job in terms of pay, benefits, and working conditions (29 C.F.R. §§ 825.215(a), (e)(1)–(e)(2)).
27 29 C.F.R. § 825.216(a) (2013).
28 See, e.g., Wolpert v. Abbott Laboratories, 817 F. Supp. 2d 424, 438 (D.N.J. 2011).
29 29 C.F.R. §§ 825.311, 825.312, 825.216 (2013). For a definition of “key employees,” see 29 C.F.R. §§ 825.216(b), 825.217–825.218.
30 Id. §§ 825.209(a), 825.210(a).
31 Id. § 825.209(h).
32 Id. § 825.207.
33 Id. § 825.302(a)–(c).
34 Id. § 825.301(a)–(b).
35 Id. § 825.302(d); § 825.303(c).
36 Id. § 825.306.
37 Id. § 825.305.
38 Id. § 825.308.
39 Id. § 825.300.
40 Id. §§ 825.311, 825.312.
41 29 U.S.C. § 2617(a). Federal workers must pursue their claims under the Family and Medical Leave Act before the Merit Systems Protection Board (Ikossi v. England, 406 F. Supp. 2d 23, 26 (D.D.C. 2005), aff’d in part, rev’d in part on other grounds, 516 F.3d 1037).
42 29 U.S.C. § 2617(c).
43 Id. § 2617(b).
44 National Partnership for Women and Families, Expecting Better: A State-by-State Analysis of Laws that Help New Parents (May 2012); U.S. Department of Labor, Wage and Hour Division (WHD): Federal vs. State Family and Medical Leave Laws (n.d.); National Conference of State Legislatures, State Family Medical Leave and Parental Leave Laws (Dec. 2012).
45 District of Columbia Family and Medical Leave Act of 1990, D.C. Code § 32-501–517 (LexisNexis 2013); Employment Justice Center, FMLA (Family and Medical Leave Act) and D.C. Paid Sick and Safe Leave in Washington, D.C. (April 2011).
46 Washington State Family Leave Act, Wash. Rev. Code §§ 49.78.010 et seq. (2013); Washington State Department of Labor and Industries, Washington State Family Leave Act Q&A (March 2010).
47 Vermont Parental and Family Leave Act, Vt. Stat. Ann. tit. 21, §§ 470–474 (2013).
48 Oregon Family Leave Act, Or. Rev. Stat. §§ 659A.150–659A.186 (2012).
49 California Family Rights Act, Cal. Gov’t Code § 12945.2 (Deering 2013).
50 Maine Family Leave Act, Me. Rev. Stat. Ann. tit. 26, §§ 843–849 (2013).
51 Conn. Gen. Stat. § 31-57r–w (2013) (Connecticut’s law does not require serious health condition).
52 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.
53 The Rehabilitation Act of 1973, 29 U.S.C. § 794(d), explicitly incorporates the standards of Title I of the Americans with Disabilities Act (ADA) (see, e.g., Sanchez v. Vilsack, 695 F.3d 1174, 1177 (10th Cir. 2012).
54 42 U.S.C. § 12203. The Rehabilitation Act adopts the antiretaliation provision of the ADA (see Solomon v. Vilsack, 628 F.3d 555, 559 (D.C. Cir. 2010)).
55 ADA Amendments Act, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (codified as amended in scattered sections of ADA, 42 U.S.C.
56 29 C.F.R. § 1630.2(e) (2013).
57 29 U.S.C. § 794(a)–(b).
58 See, e.g., Johnson v. City of Saline, 151 F.3d 564, 568 (6th Cir. 1998); Dykes v. Depuy, 140 F.3d 31, 38 (1st Cir. 1998).
59 42 U.S.C. § 12111(8).
60 42 U.S.C. § 12102; 29 U.S.C. § 794. Having a disability further refers to people with a record of such impairment and people who are merely regarded as having such an impairment, but people who are merely regarded as impaired are not entitled to accommodations (29 C.F.R. § 1630.9 (2013)).
61 29 C.F.R. § 1630.2(j); ADA-covered disabilities are generally permanent or long-lasting; impairments that last a short time may be covered if they substantially limit a major life activity (id. § 1630.2(j)(1)(ix)).
62 Id. § 1630.2(i).
63 42 U.S.C. § 12111(9).
64 See Graves v. Finch-Pruyn and Company, 457 F.3d 181, 185 n.2 (2d Cir. 2006); “Undue hardship” means a “significant difficulty or expense” in light of several factors (29 C.F.R. § 1630.2(p)).
65 U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Oct. 17, 2002) (No. 915.002, “Leave”; Question 22). Courts defer to the statutory interpretation in this guidance (see, e.g., Johnson v. Board of Trustees, 666 F.3d 561, 566 (9th Cir. 2011); Duvall v. Georgia-Pacific Consumer Products Limited Partnership, 607 F.3d 1255, 1262 n.2 (10th Cir. 2010)).
66 See, e.g., Ralph v. Lucent Technologies Incorporated, 135 F.3d 166, 172 (1st Cir. 1998); Nunes v. Wal-Mart Stores, 164 F.3d 1243, 1247–48 (9th Cir. 1999).
67 See Walsh v. United Parcel Service, 201 F.3d 718, 727 (6th Cir. 2000); Taylor v. Donley, 2012 U.S. Dist. LEXIS 11660, at *57 (E.D. Cal. Jan. 30, 2012).
68 See Powers v. Polygram Holding Incorporated, 40 F. Supp. 2d 195, 201 (S.D.N.Y. 1999).
69 U.S. Equal Employment Opportunity Commission, supra note 65 (Question 18).
70 U.S. Equal Employment Opportunity Commission, EEOC Enforcement Guidance: Worker’s Compensation and the ADA (July 6, 2000) (Question 13). The Equal Employment Opportunity Commission’s interpretation of the ADA in this guidance is given deference by the federal courts (see Hendricks-Robinson v. Excel Corporation, 154 F.3d 685, 693 n.7 (7th Cir. 1998)).
71 29 C.F.R. § 1630.9(a).
72 U.S. Equal Employment Opportunity Commission, supra note 65 (Questions 1 and 40).
73 29 C.F.R. § 1630.2(o)(3); Gibson v. Lafayette Manor Incorporated, 2007 U.S. Dist. LEXIS 99008, at *26 (W.D. Pa. March 5, 2007).
74 U.S. Equal Employment Opportunity Commission, supra note 65 (Question 9).
75 42 U.S.C. § 12117.
76 U.S. Equal Employment Opportunity Commission, Filing a Charge of Discrimination (n.d.).
77 42 U.S.C. § 12117.
78 Janet Arterton & Gary Phelan, Disability Discrimination in the Workplace 19-1 to 19-7 (2013).
79 Disability Rights Washington, Employment Discrimination—Federal and Washington State Laws (Jan. 2011).
80 California Fair Employment and Housing Act, Cal. Gov’t Code
§§ 12926(d), 12940(m) (2013).
81 Pennsylvania Human Relations Act, 43 Pa. Stat. Ann.
§§ 951–963; see Canteen Corporation v. Pennsylvania Human Relations Commission, 814 A.2d 805, 811 (Pa. Commw. Ct. 2003).
82 See, e.g., Mascioli v. Arby’s Restaurant Group, 610 F. Supp. 2d 419, 440 (W.D. Pa. 2009).
83 29 C.F.R. § 1630.2(j) (2013) (see also Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act, § 1630.2(j) (2013)).
84 U.S. Equal Employment Opportunity Commission, supra note 65 (Question 21).
86 Workers sometimes mistakenly believe that they have an automatic right to return to their old jobs so long as they are receiving workers’ compensation or disability insurance benefits. That is not necessarily true. A few states do require reinstatement in some circumstances when a worker returns from a workers’ compensation leave. In many states, retaliating against a worker for claiming workers’ compensation is illegal; thus workers can take legal action if they are terminated in retaliation for filing a claim and going out on leave (see, e.g., Shick v. Shirey, 716 A.2d 1231 (Pa. 1998); Kelsay v. Motorola, 384 N.E.2d 353 (Ill. 1978)).
87 U.S. Equal Employment Opportunity Commission, The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 (July 6, 2000) (Question 19). Note, however, that the ADA protects people from discrimination based upon their relationship with a person with disability (42 U.S.C. § 12112(b)(4)).
88 See 29 C.F.R. §§ 825.112, 825.113.
89 Id. §§ 825.112, 825.122 (2013).
90 Id. § 825.112(a)(3).
91 Id. § 825.124.
92 Id. § 825.127(a) (2013).
93 Id. § 825.127(b).
94 National Partnership for Women and Families, supra note 44, at 23–29, 31, 36, 44–46.Download this article