Disability Leave: Best Practices Checklist

A Checklist of issues under federal law that private employers should consider when reviewing and responding to an employee's request for disability-related leave. This Checklist addresses the Family and Medical Leave of 1993 (FMLA), the Americans with Disabilities Act of 1990 (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). For information on state law requirements, see the State Q&A Tools under Related Content.

Michelle Tatum, Ford & Harrison LLP and PLC Labor & Employment

Identify Federal Disability Leave Laws Applicable to Employer

Federal laws governing private employers' obligations to provide disability (www.practicallaw.com/5-501-9332) or disability-related leave to employees in certain situations include the:

 

Determine Employee's Leave Eligibility under Each Federal Statute

An employee may be eligible for leave under more than one federal statute. For example, an employee with a serious health condition (www.practicallaw.com/7-504-3072) may qualify for FMLA leave and also have a disability under the ADA. Employers should assess whether an employee independently qualifies for leave under each applicable statute.

FMLA Eligibility Requirements

To qualify for protected leave under the FMLA, an employee must:

  • Work for an FMLA-covered employer.

  • Have worked for the employer for at least 12 months (which need not be a consecutive period of time).

  • Have worked for at least 1,250 hours over the previous 12 months.

  • Be employed at a US worksite with at least 50 employees working for the employer within 75 miles.

  • Have an FMLA-qualifying reason for leave. Leave must be granted under the FMLA to an eligible employee who requests time off from work for:

Special eligibility rules apply to determining FMLA eligibility for airline flight crew employees (see Practice Note, Family and Medical Leave Act (FMLA) Basics: Special Rules for Airline Flight Crew Employees (www.practicallaw.com/9-505-1339).

Although outside the scope of this Checklist because it is not a type of disability leave, another basis for FMLA leave is military-related leave caused by a qualifying exigency (www.practicallaw.com/5-502-3433). For more information, see FMLA Employer Coverage and Employee Eligibility Checklist: Military-related Leave (www.practicallaw.com/1-503-9025) and Practice Note, Military Leave Law: Exigency Leave (www.practicallaw.com/7-504-4849).

ADA Eligibility Requirements

An employee with a disability may be entitled to leave as a reasonable accommodation (www.practicallaw.com/7-504-1921) if the employee:

  • Works for an ADA-covered employer.

  • Is a qualified individual (that is, able to perform the essential functions of the job with or without reasonable accommodation).

  • Has a physical or mental impairment that substantially limits a major life activity (www.practicallaw.com/5-502-0444).

For more information, see Practice Note, Disability Accommodation under the ADA: Definition of Disability (www.practicallaw.com/9-503-9007) and Definition of Reasonable Accommodation (www.practicallaw.com/9-503-9007).

Title VII Protections Regarding Leave

Employees in Protected Classes

Title VII prohibits employers from providing leave in a discriminatory manner based on an employee's:

  • Race.

  • Color.

  • National origin.

  • Religion.

  • Sex.

Pregnant Employees

Title VII, as amended by the Pregnancy Discrimination Act of 1978 (www.practicallaw.com/6-503-5162) (PDA), protects an employee who is pregnant and provides that a covered employer:

  • Cannot provide leave in a discriminatory manner on the basis of sex, including leave required for:

    • pregnancy;

    • childbirth; or

    • pregnancy-related medical conditions.

  • Must treat pregnancy-related conditions the same as non-pregnancy conditions. For example, if an employer:

    • has a policy of providing paid leave for temporary medical conditions, the employer must also provide paid leave for pregnancy-related medical conditions; or

    • does not require employees to provide medical certification for non-pregnancy-related disability leave, the employer also cannot require medical certification for pregnancy-related disability leave.

Workers' Compensation Leave

Leave taken under an employer's state workers' compensation scheme for a work-related injury or illness may also qualify for leave either as a:

  • Serious health condition under the FMLA.

  • Disability under the ADA.

Although workers' compensation is solely a state mechanism and outside the scope of this Checklist, employers should be cautious of automatically terminating an employee who does not return to work after the end of workers' compensation leave. Consider whether the employee is entitled to further protections, such as leave or reasonable accommodation under either the FMLA or ADA, or both.

 

Maintain Good Record-keeping Practices

Provide FMLA Notices to Employee

  • Within five business days of an employee requesting leave under the FMLA, or of an employer learning information that the leave may be for an FMLA-qualifying reason, the employer should provide the employee with written notice of:

    • eligibility or ineligibility for FMLA leave (29 C.F.R. § 825.300(b));

    • the responsibilities of the employee while on FMLA leave and consequences for failing to meet any of those obligations, such as providing medical certification by a health care provider of a serious health condition (29 C.F.R. § 825.300(c));

    • designation of leave as FMLA leave (29 C.F.R. § 825.300(d)(1)); and

    • any fitness-for-duty certification that will be required before the employee can return to work at the end of the FMLA leave (29 C.F.R. § 825.300(d)(3)).

  • Keep track of the amount of leave taken from the date the leave was designated as FMLA leave. Deduct the amount from the employee's allotted FMLA leave (either 12 or 26 weeks, see Determine Amount of Leave Entitlement) under the applicable provision.

For more information about the FMLA's required notices, see FMLA Employee Notice and Employer Response Checklist: Employer Response to Employee Notice of Need for Leave (www.practicallaw.com/2-503-9100) and Practice Note, Family and Medical Leave Act (FMLA) Basics: Notice Requirements (www.practicallaw.com/9-505-1339).

Consider Using FMLA Forms

To ensure that employees are provided the requisite notice and information, employers can consider using FMLA forms. The Department of Labor (www.practicallaw.com/2-501-6354) provides prototype forms that employers may use (see DOL: Family and Medical Leave Act). Employers can use the DOL's forms, as is, or modify them as appropriate, as long as the requisite notice is given (29 C.F.R. § 825.300(c)(6)).

PLC has developed its own forms based on the DOL's versions, but which have been modified with employers in mind, for example, to include language required by the Genetic Information Nondiscrimination Act of 2008 (www.practicallaw.com/1-501-8645) (GINA) (see Standard Clause, Safe Harbor Provision Under GINA (www.practicallaw.com/6-504-8777)). These FMLA forms are:

Before using FMLA forms, employers should ensure the information requested complies with applicable state law. For example, employers in California should modify the forms to comply with state law regarding privacy of medical information and that a health care provider should not disclose an employee's underlying diagnosis without consent. For more information on how California leave law differs from federal law, see FMLA, CFRA and PDL Comparison Chart (California) (www.practicallaw.com/1-523-2952).

Request Medical Documentation under the ADA

  • An employer should not inquire into an employee's underlying medical condition or diagnosis either orally or in writing.

  • For leave record-keeping purposes, an ADA-compliant form should be used to request information from an employee's health care provider that is limited to the:

    • existence of a disability (but not the diagnosis);

    • extent of employee's limitations; and

    • employee's ability to perform job functions.

  • A copy of the employee's job description, containing the essential functions of the employee's job, as well as the physical demands of the job, can be provided to the employee's health care provider to assist in completing the ADA-compliant request for information form.

  • An employer should ensure that any information requested is:

    • job-related; and

    • consistent with business necessity.

  • If the requested leave is covered under both the ADA and the FMLA, an employer will not violate the ADA by asking for information specified in the FMLA certification form to be completed by a health care provider. If the inquiries are strictly limited to determining why an employee is requesting time off under the FMLA, the inquiry will be considered job-related and consistent with business necessity.

For more information about disability-related inquiries, see Practice Notes, Disability Accommodation Under the ADA: Engaging in the Interactive Process (www.practicallaw.com/9-503-9007) and Interactive Process under the ADA (www.practicallaw.com/5-509-4840).

Maintain Privacy of Employee's Medical Information

  • Medical and health-related information received from or about an employee should be kept in a confidential medical file, separate from the employee's personnel file.

  • Access to the medical file should be restricted to the employer's:

    • health care provider;

    • human resource professional; or

    • leave administrator.

  • Supervisors and managers should not be given unrestricted access to an employee's medical file.

  • An employee's supervisor or manager should only be given information that is limited to an employee's:

    • necessary work restrictions; and

    • reasonable accommodations.

 

Designate the Leave Properly

Designate the leave properly as it will determine the employer's obligations during leave and the employee's entitlement to:

  • Amount of leave.

  • Reasonable accommodations.

  • Types of job protections.

  • Health insurance coverage while on leave.

FMLA leave, in particular, must be properly designated. For example, leave taken under the FMLA may run concurrently with leave taken under an employer's state workers' compensation plan. However, the leave must have properly been designated as FMLA leave to count workers' compensation leave toward an employee's allotted FMLA leave amount.

 

Determine Amount of Leave Entitlement

Allotted Leave Amount under the FMLA

  • Under the FMLA, an eligible employee is entitled to:

    • 12 workweeks of unpaid leave during any 12-month period for the employee's or the employee's family member's serious health condition; or

    • 26 workweeks of leave in a single 12-month period to care for a military member with a serious injury or illness.

  • Under certain circumstances, FMLA leave may be taken:

    • intermittently (in separate blocks of time for a single qualifying reason); or

    • on a reduced schedule (reducing the employee's normal weekly or daily work schedule).

  • An employee taking leave on an intermittent or reduced schedule basis can so do until the employee has used up the equivalent of 12 or 26 workweeks (depending on the reason for the leave).

  • Leave under the FMLA need not be taken all at once, but an employee is limited to a total of either 12 or 26 workweeks of FMLA leave (based on the qualifying reason for leave) within the applicable 12-month period. However, the employee may be entitled to additional leave if the leave also qualifies as an ADA disability.

  • Distinct rules apply to:

For more information, see Resolving Issues During and After FMLA Leave Checklist: Active Leave Period Issues (www.practicallaw.com/0-503-9097).

Allotted Leave Amount under the ADA

  • No specific amount of leave is required as a reasonable accommodation under the ADA.

  • If leave is provided as a reasonable accommodation to an employee with an ADA-covered disability, the length of leave can vary depending on:

    • how much leave the employee needs because of his disability; and

    • whether the duration of requested leave creates an undue hardship on the employer's business.

  • Modification of an employer's leave policy may be a reasonable accommodation. An employer's leave policy, if uniformly applied to all employees, does not violate the ADA simply because it has a more severe effect on a particular employee because of a particular disability. Additionally, ,an employer's policy that leave may not be taken during the first six months of initial employment is not discriminatory on its face. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless the employer can demonstrate that doing so would impose an undue hardship.

 

Determine Whether Employee Will Be Paid During Leave

Pay During FMLA Leave

  • Leave required by the FMLA is on an unpaid basis.

  • However, an employer may allow an employee to substitute paid leave during unpaid FMLA leave from sources such as the employee's:

    • accrued sick time;

    • accrued paid time off (PTO);

    • accrued vacation time;

    • receipt of benefits under the employer's short-term disability (STD) or long-term disability (LTD) plans, if eligible; or

    • paid benefits under any state disability insurance plans or state paid family leave plan.

  • With regard to an employee properly classified as exempt under the Fair Labor Standards Act of 1938 (www.practicallaw.com/5-501-9884), an employer may make salary deductions for any hours taken as intermittent or reduced FMLA leave during the exempt employee's workweek without affecting the exempt status of the employee (29 C.F.R. § 825.206(a)).

Pay During ADA Leave

  • Leave under the ADA need not be paid.

  • However, employers must consider allowing an employee to use accrued leave, advanced leave or leave without pay where this will not cause an undue hardship on the employer.

Pay Issues During Other Types of Leave

If an employee takes leave under a disability plan or workers' compensation scheme, the employer may designate the leave as FMLA-protected leave. In such case, the employer may not require the employee to substitute accrued paid leave for disability plan or workers' compensation benefits that the employee receives. However, the employer may permit the employee to use accrued paid leave to supplement the amount of disability or workers' compensation benefits received so that the employee is provided 100% of his regular pay while on leave.

 

Comply With Employer's Duties During Employee's Protected Leave

Health Insurance Coverage

  • An employer must provide an employee taking FMLA leave with the same level of group health plan coverage as existed before the employee taking FMLA leave.

  • An employer must provide an employee taking ADA leave (either full-time leave or leave to work a reduced schedule) with the same level and terms of health insurance coverage that it provides to other employees in the same leave or part-time status.

Job Reinstatement Rights

  • On returning from FMLA leave, the employer must reinstate the employee to:

    • the same job; or

    • an equivalent job, if the employee's original job is no longer available, with the same level of pay, benefits and terms and conditions of employment.

  • Employees who are airline flight crew members are immediately entitled to return to the "same or equivalent position" unless it is "physically impossible."

  • Under certain circumstances, FMLA's reinstatement requirement may be denied to a key employee who is an exempt, salaried worker among the highest paid 10% of all the employees employed by the employer within 75 miles of the employee's worksite (see FMLA Employee Notice and Employer Response Checklist: Key Employee Designation (www.practicallaw.com/2-503-9100)).

  • An employee returning from ADA-protected disability leave is entitled to return to the same job, unless the employer demonstrates that holding the job open while the employee is on leave would create an undue hardship. If the employer informs the employee that they can no longer hold their job because of an undue hardship, the employee is still entitled to leave. The employer:

    • must consider whether there is a vacant, equivalent position which the employee is qualified to perform that the employee can be reassigned to without undue hardship to continue his leave;

    • if an equivalent position is unavailable, must look for a vacant position at a lower level; or

    • if no position is available, is not required to continue accommodating the employee.

 

Respond to Return From Leave Issues

Fitness-for-duty Certifications

  • If a fitness-for-duty certification has been requested, an employer should review the certification and request further information from the health care provider where necessary.

  • Employers should ensure that the requirement to provide a fitness-for-duty certification before returning to work is applied uniformly to all employees who have taken leave, and not merely, for example, to employees returning from pregnancy leave.

Employee No Longer Able to Perform Essential Job Functions

If an employee cleared to return to work after taking leave no longer can perform an essential function of his position even with a reasonable accommodation:

  • Under the ADA, the employer must consider reassigning the employee to:

    • an equivalent vacant position for which the employee is qualified; or

    • a vacant position at a lower level, if an equivalent position is unavailable. If there is no vacant position at a lower level, the employer is not required to engage in further accommodation efforts.

  • Under the FMLA, if the employee is unable to perform the essential functions of the same or equivalent position due to a physical or mental condition, the employer is not required to reinstate the employee into another job. However, employers must ensure that the:

    • employee's physical or mental condition does not qualify as a disability under the broadened definition of the ADA, as amended; and

    • job function the employee is unable to perform is truly an essential function, which is subject to increasing scrutiny during any subsequent litigation for failure to reasonably accommodate.

For more information, see Practice Note, Disability Accommodation under the ADA: Definition of Disability (www.practicallaw.com/9-503-9007) and Definition of Qualified Individual (www.practicallaw.com/9-503-9007).

Beware of Retaliation Claims

  • An employer may not discriminate or retaliate against an employee for taking leave under the FMLA or ADA.

  • An employee returning from protected leave may claim retaliation if the employee is subject to:

    • reassignment;

    • reduction in pay; or

    • a performance evaluation.

  • While employees who have taken, or are taking leave, are not entitled to greater job protections (for example, from being impacted in a reduction in force (www.practicallaw.com/9-382-3830)) than employees who have not taken protected leave, employers should ensure they have non-discriminatory reasons related to business necessity for any employment actions taken with regard to an employee taking, or returning from, protected leave.

 
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