Academic journal article Public Personnel Management

The Leave of Absence Puzzle: Fitting the Pieces Together

Academic journal article Public Personnel Management

The Leave of Absence Puzzle: Fitting the Pieces Together

Article excerpt

Employers today are required to operate their businesses under a variety of regulations stemming from a multitude of laws governing the workplace. Frequently, common workplace occurrences raise difficult questions under several different laws. One such occurrence is when an employee requests a leave of absence for an illness or an injury. If such a request is not handled properly, an employer could face liability under statutes including the Americans With Disabilities Act ("ADA"), the Family and Medical Leave Act ("FMLA"), and Workers' Compensation laws.(1) For employers with a unionized work force, the situation could be further complicated by a collective bargaining agreement.

Unfortunately, working with all of these laws concurrently is often akin to assembling a jigsaw puzzle - all the pieces must be used, but it is not always apparent how they fit together Because there are several different factors which must be analyzed when employees request leaves of absence, it is imperative that employers utilize a multi-track analysis that considers all of the relevant laws. This outline illustrates a number of important areas of overlap and identifies pragmatic approaches for utilizing this multi-track analysis.

Covered Employers

How Many Employees?

Not all employers are covered by the ADA, FMLA and Workers' Compensation laws. The ADA covers employers with 15 or more employees. By contrast, the FMLA covers all public employers and private employers with 50 or more employees. Generally, Workers' Compensation laws apply to all employees. Therefore, in the private sector, ADA, FMLA and Workers' Compensation laws overlap only for those employers that employ 50 or more employees. In the public sector, ADA, FMLA and Workers' Compensation laws overlap for those employers with 15 or more employees. In the private sector, Workers' Compensation laws and the ADA overlap for those employers with 15 or more employees.

What "Types" of Employees?

The ADA applies to "applicants" and does not require any particular length of employment. The FMLA, however, does not apply to applicants and requires at least one year of service and 1,250 hours worked in order for an employee to be eligible. Workers' Compensation laws do not apply to applicants, and there is no length of service requirement before coverage begins.

Defining an Injury or Illness

A "Disability," "Serious Health Condition" or "Compensable Injury?"

The ADA's definition of a "disability" diverges from the FMLA's definition of "serious health condition" and Workers' Compensation's "compensable injury." Thus, a "disability" under the ADA may or may not raise concerns under the FMLA and/or Workers' Compensation laws.

* "Disability": Under the ADA, a "disability" is defined as "a physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. 12102(2)(A). The definition also includes individuals who have a record of or are regarded as having such limitations. Major life activities include such functions as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. 1630.2(I). Therefore, if an individual is substantially limited in his or her ability to perform any of these functions, he or she is likely disabled under the ADA.

* "Serious Health Condition": The FMLA defines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves: (A) inpatient care in a hospital, hospice or residential medical care facility, or (B) continuing treatment by a health care provider" 29 U.S.C. 2611 (11).

* "Compensable Injury": Typically, Worker's Compensation statutes define "injury" as any injury "accidental in nature and result; received in the course of, and arising out of, the injured employee's employment." See, e.g., O.R.C. 4123.01(C). Unlike the ADA and the FMLA, such compensable injuries do not generally include psychiatric conditions not arising from work, natural degeneration of the body, or injuries received while participating in employer-sponsored recreation or fitness activities where the employee signs a waiver See, e. …

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