Legally Protected Leaves Of Absence: Are You Eligible?

The law mandates that employers give employees time-off from work for medical reasons under specific circumstances.  However, each employee’s specific rights will depend largely on the state he or she works in and the size of the employer.  This article briefly describes the various types of medical leaves of absence employees may be entitled to.

The Major Federal Laws Covering Medical Leaves of Absence

The Family and Medical Leave Act (FMLA)

The FMLA allows employees to take an unpaid medical leave for their own or certain family members’ serious health conditions or for the birth or adoption of a child.  Since January 2009, the FMLA also provides family members of military service members time-off to care for wounded service members during rehabilitation.

The FMLA only protects employees who work for a company that employs 50 or more employees within a 75-mile radius and who have worked for the company for at least 12 months and 1,250 hours.

The Americans with Disabilities Act (ADA)

The ADA requires employers to reasonably accommodate employees with mental or physical disabilities.  Where appropriate, a reasonable accommodation can include a finite unpaid leave of absence for a reasonable period of time that does not pose an undue hardship on the employer.

The ADA only protects employees who work for companies that employ at least 15 employees.

The Pregnancy Discrimination Act (PDA)

The PDA requires employers to treat women disabled by pregnancy, childbirth, and related-conditions the same as they do employees disabled by other medical conditions, including with respect to leave of absence policies.

The PDA only protects employees who work for companies that employ at least 15 employees.

Can I take a leave of absence from work for my own medical condition?

FMLA

If your medical condition qualifies as a serious health condition, your employer has at least 50 employees within 75 miles, and you have worked for the company for at least 12 months and 1,250 hours, you are eligible under the FMLA to take up to 12 weeks per year of unpaid medical leave.

A “serious health condition” is an illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment by a health care provider.  An illness that renders you unable to work you for more than three consecutive days or that necessitates at least two doctor visits within 30 days will generally qualify as a serious health condition.  Some examples of serious health conditions include (but are not limited to) cancer, heart conditions, diabetes, strokes, back conditions, epilepsy, and pregnancy and related conditions such as miscarriages and morning sickness.  Illnesses such as the common cold, the flu, ear aches, upset stomachs, and non-migraine headaches generally will not qualify as serious health condition.

Although FMLA leave is unpaid, employees have the right to use any accrued vacation, paid sick leave, or other paid time-off (“PTO”) offered by the their employer.   Employers must also maintain the employee’s health benefits during the leave on the same basis as if the employee were not on leave.

Once an employee returns to work following FMLA leave, the employer must reinstate the employee to the same or an equivalent job as he or she had before the leave, unless the employee is a “key employee.”  (A “key employee” is a salaried employee paid in the highest 10% of all employees within 75 miles of the employee’s worksite.)

ADA

If your medical condition qualifies as a disability under the ADA, your employer may be required to grant you a finite unpaid leave of absence for a reasonable period of time that does not pose an undue hardship on the employer.

The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities.  Examples of major life activities include (but are not limited to) physical activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, and performing bodily functions.  A “disability” under the ADA is not necessarily the same as a “serious health condition” under the FMLA, although the same condition can qualify for protection under both statutes.  Whether a particular medical condition qualifies as a disability depends on how the condition limits ones major life activities, not the diagnosis or name of the condition.

Unlike the FMLA, the ADA does not specifically limit the length of the medical leave.  Whether the length of the leave is “reasonable” will depend on whether the employee’s absence from work imposes an undue hardship, i.e. significant difficulty or expense, on the operation of the employer’s business.

Can I take a leave of absence from work for my spouse or family member’s medical condition?

The FMLA allows employees who otherwise qualify for FMLA leave to take time-off to care for a spouse, son or daughter, or parent with a serious health condition.  A “spouse” is a husband or wife as defined or recognized under the state law where the employee resides.  A “son or daughter” is defined broadly to include a “biological, adopted, or foster child, a stepchild, a legal ward,” or child the employee cares for and financially supports on a day-to-day basis.  The son or daughter must either be under 18 years old or, if older than 18, he or she must be incapable of self-care because of a mental or physical disability (as defined by the ADA).

Although FMLA leave is unpaid, employees may use accrued vacation, paid sick leave, or other paid time-off offered by the their employer to care for a child, spouse, or parent with a serious health condition.  If the employer has a paid family leave policy (which is not required by law), the employee may use accrued family leave so long as the employer’s policy covers the type of leave taken.  In other words, if the employer’s paid family leave policy covers children, but not spouses, the employee may use the accrued paid family leave to cover FMLA leave for a child’s serious health condition, but not a spouse’s or parent’s.

In most other respects, the same rights and limitations apply to an employee who takes FMLA leave for a child, spouse, or parent’s serious health condition, as one who takes FMLA leave for his own serious health condition, including eligibility limits, maximum leave length, the definition of “serious health condition,” and reinstatement rights upon return to work after the leave.

Can I take time-off for a pregnancy-related medical condition or to bond with my baby?

FMLA

The FMLA allows male and female employees to take a total of 12 weeks leave for the “serious health condition” of the mother or newborn child and to bond with a newborn baby.  Likewise, an employee may take a total of 12 weeks of FMLA leave to adopt or take in a foster child, or to bond with the newly adopted or placed foster child.  FMLA leave for the birth, adoption, or placement of a foster child must be concluded within one year of the child’s birth or placement.

A “serious health condition” under the FMLA includes medical incapacity due to pregnancy or for prenatal care.   Pregnancy itself, however, without incapacity or complications, is not a “serious health condition.”  The mother can use FMLA leave for prenatal care and any incapacity relating to pregnancy, as well as for childbirth and any serious health condition following childbirth.  The father can use FMLA leave for birth of the child and to care for his pregnant spouse if she is incapacitated.

Additionally, the FMLA allows parents to take time-off simply to bond with their newborn or newly adopted or foster child.  Neither the mother nor the baby needs to have a serious health condition or other illness in order for the parents to be eligible for baby-bonding leave under the FMLA.

The laws concerning use of PTO during FMLA leaves for pregnancy and child-birth-related conditions are the same as for FMLA leaves in general.  If the employer provides paid family leave for other serious health conditions, it must also do so for serious health condition related to pregnancy and childbirth.   Similarly, the same rights and limitations apply to an employee who takes FMLA leave for the serious health condition a mother or newborn child or to bond with a new child as for other FMLA leaves, including eligibility limits, maximum leave length, the definition of “serious health condition,” and reinstatement rights upon return to work following the leave.

PDA

The PDA requires employers to treat female employees affected by pregnancy, childbirth, or related medical conditions the same as all other employees who suffer non-occupational illness or injury.  For example, if an employer provides leave to employees for non-pregnancy-related temporary disabilities, it must do the same for employees disabled by pregnancy.  However, if the employer does not provide leave to other temporarily disabled employees, it need not do so for pregnant employees.  Similarly, an employee returning from pregnancy disability leave is only entitled to reinstatement to the same or a comparable position if employees returning from other sick or disability leaves are entitled to such reinstatement.

Other medical conditions, even though related to the female reproductive system, generally do not fall within the definition of “pregnancy, childbirth or related medical conditions.”  For example, the PDA does not protect absences for breast-feeding, childcare, and medical conditions affecting reproduction apart from pregnancy.

I don’t have a serious health condition or disability; I’m just sick.  Does my employer have to give me time-off?

Although most employers do provide sick leave to their employees for medical conditions other than those described above, federal law does not require employers to do so.  Similarly, if an employer does provide sick leave, it need not be paid.

State and Local Medical Leave Laws Differ from Federal Laws, and May Provide Greater Rights to Employees

As with most employment law issues, state and local laws regulating employee medical leave rights vary considerably, and may afford employees greater rights than those described above.  In fact, where state and federal laws differ, employees are entitled to protection under the statute that gives the greatest rights to the employee.

In California, for example, the California Family Rights Act (“CFRA”) permits employees to take leave to care for a registered domestic partner with a “serious health condition,” in addition to the rights granted by the FMLA.  Under California’s Fair Employment and Housing Act (“FEHA”), an employer need only employ five employees (rather that 15) to be obligated to provide disability leave.  California’s Pregnancy Disability Leave Law (“PDLL” or “PDL”) requires employers to provide up to four months leave to an employee disabled by pregnancy, childbirth, or related medical conditions, and the employee generally must be reinstated to the same position after the leave.   California law also provides for payments from the State Disability Fund for wage loss of employees who take time-off work to care for a seriously ill child, spouse, parent, or domestic partner, or to bond with a new child.  Finally, the San Francisco Sick Leave Ordinance requires all employers to provide a minimum of one hour of paid sick leave for every 30 hours worked to San Francisco employees.

Medical leave rights are complex, overlapping, and ever-changing.  Therefore, if you need time-off for your own or a close family member’s medical condition, it is extremely important that you consult an employment attorney in your area.  What you learn can save your job and your peace of mind.

Raven Sarnoff is a founding partner of Sarnoff & Sarnoff located in Los Angeles, California.  Ms. Sarnoff is also a member of the LawGuru Attorney Network.

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