Medical Leave under the FMLA and ADA

Employee Right to Take Medical or FMLA Leave as an AccommodationThe Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year. It is often used for the birth and care of the newborn child of the employee, for placement with the employee of a child for adoption or foster care, or to care for an immediate family member (spouse, child, or parent) with a serious health condition. The FMLA’s core benefits are the employee’s right to return to their prior job or an equivalent position, and protection from retaliation for taking leave.

If you are not covered by the FMLA, or you used up FMLA available for the year, additional unpaid leave may be available as a reasonable accommodation under the Americans with Disabilities Act (ADA). Unpaid leave can be a reasonable accommodation when you need to be away from work but are able to return in the foreseeable future.


Eligibility and Coverage

Typically, FMLA benefits are accessible to employees who work for an employer at a location with 50 or more employees, and have been with the company for at least 12 months, having clocked more than 1,250 hours during the last year. The FMLA allows employees who have their own or a family member with a serious health condition to take up to 12 weeks of unpaid leave to care for that serious health condition. This leave can be taken continuously (e.g., 12 weeks in a row) or intermittently, on an as needed basis.

Serious Health Condition

A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.

Inpatient care refers to an overnight stay in a hospital, hospice, or residential medical care facility. This includes any period of incapacity, or any subsequent treatment in connection with such inpatient care. Incapacity, in the FMLA context, implies an inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment, or recovery from the condition.

Continuing treatment by a healthcare provider is somewhat more complex. It includes:

An incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves:

Absences attributable to incapacity under the pregnancy or chronic conditions provisions qualify for FMLA leave even though the employee or covered family member does not receive treatment from a healthcare provider during the absence, and even if the absence does not last more than three consecutive, full calendar days.

Conditions Excluded as Serious Health Conditions

Not all conditions qualify as serious health conditions. For instance, conditions for which cosmetic treatments are administered, like most treatments for acne or plastic surgery, are not considered serious health conditions unless inpatient hospital care is required or complications develop. Also, the common cold, flu, earaches, upset stomach, minor ulcers, headaches other than migraines, routine dental or orthodontia problems, and periodontal disease generally do not meet the definition of a serious health condition and do not qualify for FMLA leave.

Payment and Health Insurance

FMLA leave is not paid. Employees can elect to use their available vacation or sick leave during this time. Employers can also mandate the use of such paid leave during an FMLA absence. However, the Act doesn't create a right to compensation or any other monetary benefit.

Although your employer does not have to pay you while you are on FMLA leave, your employer cannot terminate your health insurance coverage during that time, as long as you continue to contribute your share of the premium.

Job Restoration After FMLA Leave

The core benefit of the FMLA is restoration to the same or an equivalent position as the one at the beginning of the leave. After an FMLA leave, employers must restore employees to their original position or an equivalent one with the same benefits, pay, and conditions of employment. However, if employees lose their job during a leave for reasons unrelated to their leave, like a general layoff, the FMLA does not entitle them to return.

Notification for FMLA Leave

Employees planning to take FMLA leave must give their employers sufficient notice. If the leave is foreseeable for more than 30 days, they must provide a 30-day notice. However, when it's not possible to give 30 days notice, employees must notify their employer as soon as practicable, usually by the end of the next business day.

Employers, on the other hand, must provide four types of notices to employees regarding their FMLA rights. These include

Each serves a specific purpose, from general information about FMLA rights to specific details regarding an employee's leave duration and responsibilities.

Certificate of Health Care Provider

Upon receiving notice of an employee’s need for FMLA leave, the employer can require the employee to obtain a Certificate of Health Care Provider. This is a Department of Labor form, number WH-380, which asks for the onset date of the serious health condition, its probable duration, appropriate medical facts, and the estimated amount of care time required.

Employers can request a second or third opinion if they question the certification. They can also ask for recertification under specific circumstances, like the passage of time, extension requests, changes in circumstances or reasons causing the employer to doubt the stated reason for the absence.

Employers can also request a fitness-for-duty certification from the healthcare provider. It addresses whether the employee can perform the job's essential functions. The employer cannot ask for a second or third opinion on this certification.

Americans with Disabilities Act

Under the Americans with Disabilities Act (ADA) employers must provide “reasonable accommodations” to qualified individuals with disabilities unless doing so would cause undue hardship. A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done that enables an individual with a disability to perform their job functions and enjoy equal benefits and privileges of employment as non-disabled employees.

One way to modify a job for an employee whose disability requires time away from work is to provide unpaid leave, or excused absences, for the disability related time off. The purpose of providing unpaid time off is to enable the employee to return to and perform their job to their full capacity when they can do so.

Disability Related Reasons for Unpaid Leave

Unpaid time off helps employees work to their fullest by enabling them to obtain treatment and otherwise recover from a disability that could otherwise prevent them from performing their job. This includes:

Limits to Unpaid Time Off as a Reasonable Accommodation:

Protecting Your Right to Unpaid Leave

If you need time away from work to recover from or obtain treatment for you or a family member, start with the FMLA. If you are covered, you have up to twelve weeks available to care for your own or a family member’s serious health condition.

If you are not covered by the FMLA, or you have use up the time available under the FMLA, consider additional, unpaid under the ADA as a reasonable accommodation. If additional time off will enable you to return to work in the foreseeable future, the ADA can help you reach that goal.

We advise employees and companies with respect to reasonable accommodations in the workplace and leaves of absence under the Family and Medical Leave Act (FMLA). Contact one of our attorneys if you need assistance with completing or reviewing FMLA certifications or other accommodation request forms, return-to-work issues following a medical leave, or other issues related to intermittent or continuous FMLA leave.

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