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.

                 An excellent reference source for most questions pertaining to this pandemic  is the federal government’s website http://www.flu.gov., which contains very useful and specific information, as well as links to issues of specific concern to various businesses.

                The U.S. Department of Labor has just issued two sets of questions and answers concerning the impact of the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) on issues pertaining to employees absences from work and payment to employees who are directly or indirectly affected by the H1N1 flu virus.  Additional guidance is provided by the EEOC with respect to the impact of the Americans with Disabilities Act (“ADA”) on this pandemic situation. 

                As this situation has evolved, the federal government has continued to issue additional information and guidelines, some of which modified prior guidance.   Accordindly, continued monitoring of the main website -  www.flu.gov is advised.

Employers may obtain the new required postings by either :

1. Printing the EEOC’s supplemental posting  and posting it next to the EEOC’s September 2002 “EEO is the Law” poster or the OFCCP’s August 2008 “EEO is the Law” poster, or 
2. Printing and posting  the EEOC’s comprehensive November 2009 version of the “EEO is the Law” poster, or 
3.  If you need multiple copies and/or non-English language versions, ordering the new poster through the EEOC Clearinghouse  (the posters are on “back order” now, but are expected to be available before GINA becomes effective on 11/21/09.)  

The proposed new rules reiterate that the definition of “disability’ should be broadly interpreted.  The new rules liberally interpret the term “substantially limits” by providing that a limitation need not significantly or severely restrict a major life activity in order to meet the ADA standard for disability.  The definition of “major life activities” has been expanded and now include factors on two non-exhaustive lists, including one that identifies major bodily functions.

These rules provide that actions based on an impairment should also include actions based on symptoms of an impairment.  They also provide that qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision should not be used unless shown to be job-related for the position in issue and consistent with business necessity.

There is a 60 day period for public comment and then a period of time in which the EEOC will consider the comments before issuing  final rules, which will probably not occur before early 2010.   However, all employers should be reviewing their ADA policies and practices NOW to take into account the new realities of dealing with a broader and more liberal ADA.  The EEOC has published questions and answers regarding their proposed new ADAA rules and employers are advised to review that document with legal counsel and their HR team.

The final version of this law is substantially broader than newspaper accounts, which often refer to it as being necessary to allow female employees to be able to proceed with respect to their claims of unequal pay.   This law covers all  categories of  prohibited discrimination under Title VII, as well as under the ADA, ADEA and the Rehabilitation Act.   Additionally, the law refers to decisions which may discriminatorily impact upon benefits and other forms of compensation.  This latter provision may result in additional challenges with respect to benefit payments that are based upon compensation decisions that were made many years ago.

The law is intended to have a retroactive effect and apply to all charges that were pending on or after May 28, 2007.

This new Act, if it becomes law, will reverse the 2007 U.S. Supreme Court decision which held that the time for filing an employment discrimination charge by employees (including Ms. Lilly Ledbetter) did not begin upon receipt of each new paycheck.  The Senate is expected to consider this bill next week.