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A combination of different federal and state laws now regulate protected absences. Managing employee absences, especially those caused by the medical condition of the employee has become a primary concern for employers trying to comply with the interconnection of the federal Family and Medical Leave Act and Americans with Disabilities Act and their particular state worker's compensation laws.
The overlap and interplay among these laws is complicated: both the FMLA and the ADA require employers to grant leaves of absences without any adverse employment action being taken against the employee. While the FMLA quantifies leave at a certain number of weeks, the ADA generically describes leaves of absences as a type of "reasonable accommodation" for a disabled worker. In evaluating whether an employee is entitled to medical leave, the employee's serious health condition must preclude the employee from performing the "essential functions" (borrowed from the ADA) of his/her job. When an employer exercises its right to require medical certification for medical leave or fitness for duty certification to return to work, both certifications must be job-related and kept in a confidential medical file, consistent with the requirements of the ADA.
Similarly, [most] state worker's compensation statutes provide job protection for those workers who are exposed to a work-related illness or injury. The absence caused by such illness or injury is "protected" and the employer may not discriminate or "unreasonably refuse" to return the injured worker to suitable available work. Employers need to be particularly careful, since some states provide full reinstatement, back pay and compensatory and punitive damages. The time off recovering from a work-related injury can be considered medical leave under the FMLA, and the work-related injury may rise to the level of a "disability" under the ADA. Therefore, the injured employee may, under these new laws, be entitled to return to the same or an equivalent job.
For more information about absence control or any of Krukowski & Costello's services, please call (414) 423-1330 or email educational services.
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