After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or the thorny challenges presented by the interplay of all three laws. (Unlike FMLA and OFLA, the ADA was not specifically enacted for the purpose of providing leave per se. In fact, EEOC Commissioner Chai Feldblum has referred to the ADA as “an inadvertent leave law.”)
This post gives an overview of specific practical tips to address some of the stickier leave situations that can arise. (Shameless self-promotional plug: these and other topics were covered in depth at a Stoel Rives Breakfast Briefing Seminar. For details on other Stoel Rives seminars and breakfast briefings, click here.)
Situation No. 1. Intermittent leave – taken by employee in separate intervals for particular qualifying long-term or recurrent health issue
How to handle?
- Always require the certification of the health care provider (“CHCP”) for FMLA/OFLA intermittent leave; where the need for leave is not obvious, also require medical info for ADA accommodation leave
- The CHCP can be an employer’s most effective tool for ensuring proper compliance with OFLA and FMLA. The employer needs to carefully scrutinize the CHCP and monitor it for:
- Timely return (employee has 15 days to return)
- Completeness/need for follow-up or clarification (employer must notify employee in writing of deficiency, and employee has seven days to cure after notice of deficiency)
- The need to obtain 2nd or 3rd opinion if the employer disagrees with the HCP’s determination
- Duration/expiration and the right to obtain an updated certification (employer has right to require new certification upon expiration of the existing CHCP or upon change of circumstances)
- The employer should ensure the employee’s absence pattern is consistent with CHCP or ADA medical certification
Consider temporary transfer of employee to a position that is more suited to the employee’s intermittent leaves (requires the employee’s agreement under Oregon law)
Situation No. 2. Retroactive leave designation – occurs when past absence(s) should have been designated as protected OFLA/FMLA leave, but was not
- Why designate retroactively?
- Benefit to employer: reduces available leave bank and prevents “hoarding”
- Benefit to employee: absences are protected
- How to accomplish?
- Going forward, make sure managers are trained to recognize potential OFLA/FMLA-covered absences/tardies
- Retroactive designation allowed upon agreement by employee (29 CFR §825.301(d))
- Give employee notice of eligibility, rights, responsibilities; obtain CHCP
- After employee returns CHCP, go through dates of employee’s absences and determine which are serious health conditions (“SHCs”) (see SHCs described in 29 CFR §§825.113, 114 and 115) based on what employee reported to you as reason for absence compared to CHCP info
Situation No. 3. Job preservation obligations – employee is off work for extended time and employer wants to fill position
How to handle?
- Under OFLA – employee’s job protected through duration of OFLA leave; upon return, employee must be restored to same position if it exists or to available equivalent position if it does not
- Under FMLA – employee’s job protected through duration of leave; employee must be restored to same or equivalent position (with exception for “key employee” only if leave not also covered by OFLA; not likely to apply in vast majority of situations in Oregon)
- Under ADA – must hold employee’s job, unless doing so presents “undue hardship”; even with undue hardship, must still consider employee for equivalent position, then lesser position
- In Ninth Circuit, even “indefinite leave” may still be reasonable accommodation, despite EEOC’s position to contrary and new employer-friendly Ninth Circuit case law
- Therefore, if OFLA/FMLA leave is exhausted and employee is still not ready to return to work, before replacing employee the employer should conduct a basic ADA analysis to determine whether ADA applies, and whether extended leave is a reasonable accommodation or whether it presents employer with undue hardship
Situation No. 4. Employee’s medical condition is “debatable” – occurs when employer questions whether a condition is either a SHC or a disability under ADA
How to handle?
- For FMLA/OFLA, must do SHC analysis (see SHC described in 29 CFR §§825.113, 114 and 115); if no SHC is present, then no FMLA/OFLA leave is required
- If employee’s health care provider appears to “rubber stamp” employee’s purported condition, require second opinion (at employer’s expense)
Situation No. 5. Employee has worked only short time – employee is not eligible for OFLA/FMLA because too new, but has reported medical condition and requests leave
How to handle?
- Simple (and critical) – do basic ADA analysis to determine whether employee is entitled to leave as an accommodation under the ADA
Situation No. 6. Untimely notice by employee – employee does not notify of need for leave within statutory time periods
How to handle?
- If OFLA only applies, and employee did not give 30 days’ or as much advance notice as possible of foreseeable leave, or notice within three days of returning to work of unforeseeable leave, employer can reduce employee’s leave by the number of days (up to three weeks) employee failed to provide timely notice (OAR 839-009-0250(4)(a))
- If FMLA only applies, employer may delay or deny leave due to improper notice (29 CFR §825.304)
- If both OFLA and FMLA apply, employer may discipline employee under uniformly applied policies, but cannot delay or deny the leave
- There is no statutory time period involved for requesting leave as an ADA accommodation, although an employer may deny leave to employee who has not provided requested adequate medical supporting documentation when the need for leave is not obvious
Although the six situations outlined above require a “beyond the basics” individual approach and analysis, in each of them the employer should: 1) Always maintain open and timely communication with the employee; and 2) Follow a process that considers both the requirements of the family and medical leave laws and the ADA, when applicable.