The Quandary of LOAs
November 17th, 2011 | By Paul ChernerOn a monthly basis, employers are often dealing with employees requesting a leave of absence (“LOA”). What are the employer’s obligations under the law? The answer to this question is not “cut and dry” and involves examining the possible applicability of several federal and state employment laws, as well as a conversation with the employee requesting the leave.
This basic guide should be helpful in identifying some of the federal law issues arising from LOA requests:
1.) What is the reason for the leave request?
The Family and Medical Leave Act (“FMLA”) may apply if the employee is requesting the leave to: give birth to or care for their child; or placement of a child with the employee for adoption or foster care; or to care for an immediate family member who has a serious health condition; or because of a serious health condition that makes the employee unable to do the functions of their job; or because of the need to care for the employee to care for an immediate family member who was injured while on active military duty; or for certain exigencies that arise from an employee’s family member being called to active duty in the uniformed services. If any of these situations is the reason the employee is requesting leave, then an employer must determine whether the FMLA, which provides up to 12 weeks of unpaid leave per 12 month period , applies.
2.) Is the Employee Eligible for FMLA Benefits?
An employee is eligible for FMLA benefits if they have been employed for at least 12 months by the employer they are requesting the leave from and have worked at least 1,250 hours for that employer during the past 12 months. Additionally, employees are only eligible if they are employed at a worksite where the employer employs 50 or more employees or if the employer employs 50 or more employees within 75 miles of that employee’s worksite. If the employee meets these eligibility requirements, then a formal process is undertaken with the exchange of letters that authorizes the employee to take the leave for the time that is supported by the requisite documentation.
3.) What if the Employee is Not Eligible for FMLA Benefits?
If the employee requests a LOA for one of the reasons set forth in the FMLA, but is not entitled to FMLA benefits (because they have not met one or more of the criteria or they work in a worksite that regularly employs less then 50 employees), can the HR Director deny the request? Not necessarily so. First, the HR Director needs to see what the employer’s policy and practice has been with respect to other employees requesting LOAs. An employer must treat all such requests on a uniform basis and if they do not, they must be able to demonstrate that the different treatment is based on a legitimate, nondiscriminatory reason.
4.) An Employee May be Entitled to Leave Under the ADA.
If the employee is requesting leave because of a physical or mental condition that meets the broad definition of “disability” in the amended Americans with Disabilities Act (“ADA”), then the employee may be entitled to leave, even when they do not qualify for FMLA benefits. The ADA requires an employer to offer an employee with a disability “reasonable accommodation” if it would allow the employee to perform the essential functions of a job that they are qualified to perform. An exception to requiring this “reasonable accommodation” is if it would cause the employer an “undue hardship.” While this is a narrow exception, an employer needs to be aware of it for situations where allowing the employee to take such leave would place an undue burden upon the employer and its business operations.
An employer must engage in an interactive dialogue with the employee concerning whether granting the LOA request may be required as a reasonable accommodation. The employer must make their decision on an individual case basis, analyzing factors such as how long the leave will be for and the impact of such leave on the employer’s operations. For example, if the employee is requesting leave for a few days or a few weeks to have medical treatment required by their disability, it is likely that granting the LOA may be found to be a reasonable accommodation that the employer is required to grant. What if the amount of leave is undeterminative or is for 6 months or more then a year? Depending on the individual circumstances involved, granting extensive or undeterminative leave may be deemed reasonable or unreasonable. The EEOC recently held a public hearing on this subject, acknowledging that they needed to provide better guidelines for employers who were faced with such requests. However, it is not known at this time when the EEOC will issue further guidance on this subject.
In summary, leave requests need to be individually reviewed to determine what rights, if any, the employee requesting the leave may have under federal or state laws, in addition to those provided by the employer’s policy and practices.
Caveat: This article is a brief, general outline of a complicated subject and is not being offered as legal advice.. Employers should consult with experienced employment law counsel when faced with specific issue such as those identified in this articles.
