A NOTHER D IMENSION OF S IGHT , S OUND , AND M IND : T HE B ERMUDA T RIANGLE OF F AMILY L EAVE , R EASONABLE A CCOMMODATIONS , AND W ORKERS ' C OMPENSATION Michael Porter, Michelle Smigel, P.K. Runkles-Pearson, Cody Elliott Madeline Engel, Kellen Norwood, Tara O'Hanlon I. INTRODUCTION. Many laws grant employees the right to be absent from work because of their own personal or a family member's medical condition or the arrival of a new child. 1 Those laws include: • The Federal Family and Medical Leave Act ("FMLA"); • The Oregon Family Leave Act ("OFLA"); and • The Washington Family Leave Act ("WFLA"). Additionally: • An employer may be required to provide leave to a disabled employee as a form of reasonable accommodation for a disability under the Americans With Disabilities Act (the "ADA") and state disability laws; and • Workers' compensation laws provide certain rights (including the right to reinstatement or reemployment) for workers who are injured on the job. These statutes can vary significantly in the way they address employee coverage, eligibility, length of leave, use of paid time off, benefits continuation, and job restoration. And often there is some overlap because multiple laws may apply to a single leave of absence. What's an employer to do? This article provides a general overview of potential pitfalls by describing how the statutes may operate differently in similar situations. Whenever an employer is evaluating its leave obligations, the following strategies can be helpful: 1 These laws may also provide leave for other purposes, such as preparing for military service. And other laws may cover other types of leave, such as leave for domestic violence survivors. Those types of leave are beyond the scope of this article, which addresses leave for the employee's own medical condition. 2015 E MPLOYMENT L AW S EMINAR -1-
• First, identify all applicable laws. An employer must review eligibility requirements applicable to a given employee's situation. FMLA. (1) The employee must have worked for a total of at least 12 months (not necessarily consecutively); (2) the employee must have worked for at least 1,250 hours during the 12-month period immediately preceding the leave; and (3) the employer must have 50 or more employees within 75 miles of the employee's worksite. OFLA. The employee must have (1) worked for a period of 180 calendar days immediately preceding the date on which leave begins, and (2) worked an average of 25 hours per week during the 180-day period (unless leave is for care of a newborn child or adoptive child). WFLA. Eligibility requirements are the same as under FMLA, except in cases involving domestic partners and pregnant employees, for whom WFLA grants greater leave entitlement than FMLA. ADA. The ADA covers employees with disabilities, as do related state disability laws. 2 Workers' compensation. Workers' compensation is generally a matter of state law, and it usually benefits injured workers who are employees and not independent contractors. In some cases, however, independent contractors may be covered. The definition is technical; the employer should check with its workers' compensation carrier, its claims administrator (if the business is self-insured), or an attorney before determining that an employee is ineligible. There is no waiting period for eligibility, although there may be a waiting period after an injury before benefits begin. • Second, evaluate what each law requires. Generally, if FMLA applies, an employer will start by complying with FMLA as its baseline and then consider whether other family leave laws provide the employee with greater rights. The ADA and workers' compensation may provide additional benefits. • Third, separate leave issues from pay issues. An employer must decide how much unpaid leave is required and then consider whether any portion of the leave may be converted to a paid leave either by the employer or by the employee. • Finally, separate leave issues from performance issues. An employer must consider each leave request as if the request were made 2 State disability laws may vary in some respects from the ADA. This article focuses on the ADA. 2015 E MPLOYMENT L AW S EMINAR -2-
by the company's most outstanding employee, and performance concerns must not taint the analysis of leave rights. An employer must comply with all applicable laws. So whichever law is the most advantageous to the employee in any given situation is what the employer should follow. II. HOW DOES AN EMPLOYEE PROPERLY REQUEST LEAVE FOR MEDICAL REASONS? A. FMLA. If leave is foreseeable, an employee must provide 30 days' written notice. If the leave is unforeseeable, the employee must comply with the employer's customary notice and procedural requirements for requesting leave, unless there are "unusual circumstances," such as a medical emergency. The employee need not necessarily specifically request leave under FMLA, although the employee must give the employer sufficient information to allow the employer to determine whether FMLA applies to the leave request. For example, the employee could tell the employer that she is unable to perform her job functions, is pregnant, or has been hospitalized overnight. Merely calling in sick is insufficient. B. OFLA. An employee must generally provide 30 days' written notice of the request for leave, including an explanation of the need for leave, but need not specify that he or she is taking OFLA leave. When an employee is unable to give the employer 30 days' notice but has some advance notice of the need for leave, the employee must give the employer as much advance notice as is practicable. In emergencies, the employee needs to provide only 24 hours' oral notice before or after starting leave. That notice can be provided by another person on behalf of the employee. The employer can then require that he or she provide written notice within three days of returning to work. C. WFLA. An employee must provide 30 days' written notice, except in an emergency, in which case the employee must provide notice as soon as is practicable. D. ADA. Under the ADA, leave may be a reasonable accommodation in some circumstances. An employer's obligation to engage in the interactive process and provide reasonable accommodations (including leave) arises when an employer has notice that accommodations are needed. But an employee need not use "magic words" to request accommodations, and courts will liberally construe when an employer is on notice. 2015 E MPLOYMENT L AW S EMINAR -3-
E. Workers' compensation. A worker who has been injured or contracted an occupational disease on the job invokes the workers' compensation system by filing a timely claim indicating that the injury or occupational disease is work-related. III. WHAT INFORMATION SHOULD BE PROVIDED ON THE MEDICAL CERTIFICATION FOR FAMILY LEAVE? A. FMLA. The medical certification should include the name, address, and contact information of the healthcare provider, as well as the provider's type of medical practice or specialization. The certification may also include the approximate date on which the serious medical condition began and its probable duration. The certification must include a description of medical facts sufficient to support the need for leave. When the employee is the patient, the certification should include information sufficient to establish that the employee cannot perform the job's essential functions. In cases of intermittent leave or when the employee requests a reduced schedule, the certification should include information sufficient to establish the medical necessity of the leave as well as the expected frequency and duration of the leave. B. OFLA. OFLA regulations allow an employer to require an employee to provide medical verification of the need for leave (other than for parental or bereavement leave) but do not specifically provide guidance about what information should be included for the verification to be complete and sufficient. C. WFLA. The medical certification should include the date when the serious condition started, how long it is expected to last, any relevant medical facts known by the healthcare provider, and a statement that the employee cannot perform his or her job functions. When an employee asks for a reduced leave schedule or intermittent leave, the certification should include verification that the proposed schedule is medically necessary, the dates on which treatment will be given if they are known, and the expected duration of the reduced leave schedule or intermittent leave. IV. WHEN CAN AN EMPLOYER ASK FOR MORE INFORMATION? A. FMLA. If the certification is incomplete or insufficient, the employer can make a written request for additional information by specifying what information is needed to make the certification complete. In most circumstances, the employee has seven days to cure the deficiency. 2015 E MPLOYMENT L AW S EMINAR -4-
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