In an employment context, the word “disability” can have a number of connotations. When an employee says that he or she is out “on disability,” that person often means that he or she is on a leave of absence from his or her job and receiving some form of disability insurance benefits payments. However, the laws providing employees with these disability leave benefits do not themselves provide employees with disability leave. An employee’s potential entitlement to a leave of absence from work due to a personal disability can stem from one of a number of other laws, particularly federal, state, and local disability discrimination laws and leave laws, such as the Americans with Disabilities Act.
Employers frequently have questions about the multiple obligations that may arise for them when an employee is or becomes disabled and needs to be away from work. These include, but are not limited to, how much leave to provide, whether the leave needs to be paid, and whether to maintain the employee’s health insurance. Similar questions arise regarding employer obligations that apply with regard to employees who are pregnant (even those without medical complications). Still more questions arise as to what an employer’s obligations are when an employee is able to work with the disability, rather than needing a leave of absence. Local laws, including those providing workers’ compensation benefits and state-mandated short-term disability benefits (where required), also add layers of complexity to consider when an employee cannot work.
Laws prohibiting disability discrimination generally impose two obligations on employers: (1) to not take actions against qualified individuals with disabilities because of their disability (a qualified individual being someone who can perform the essential functions of his or her job with or without a reasonable accommodation); and (2) to provide reasonable accommodations when necessary to assist employees where their disabilities are limiting their ability to do the job.
“Reasonable accommodations” are actions taken by employers to assist employees and applicants with disabilities when their disabilities are limiting their ability to perform their job. These accommodations generally fall into two broad categories: (1) actions (such as physically modifying the working environment or adjusting an employee’s work schedule) taken to assist employees who can come to work; and (2) providing leave time for an employee to recover and return to work.
Appropriate reasonable accommodations are determined by engaging the employee in what is called the “interactive process.” This is a dialogue that allows an employer to determine what, if any, accommodation can be made that also does not impose an “undue hardship” on the business. When an employer is evaluating an employee’s reasonable accommodation request based on a disability, the interactive process frequently includes obtaining information from the employee’s health care provider in order to ascertain what kind of accommodation specifically is necessary to enable the employee to do his or her job. Employers are legally obligated to enter into this interactive process in order to determine whether an accommodation can be provided. However, this does not necessarily mean that an accommodation must or will be provided. Whether an accommodation is provided is dependent on the findings of the interactive process.
In situations where providing a leave of absence might be an appropriate accommodation, employers should be aware that they could also be subject to additional laws mandating the parameters of the leave, such as laws like the Family and Medical Leave Act (“FMLA”). The FMLA governs time-off requirements for employee family and medical leaves of absence for employers with fifty (50) or more employees. Specifically, the FMLA requires those employers to provide up to twelve (12) weeks of unpaid time off for an eligible employee’s personal serious health condition, for an employee to care for a family member with a serious health condition, for an employee to care for and bond with a newborn or newly adopted child, or for certain situations involving family members of military service members. Employers subject to the FMLA need to be aware of its interaction with other laws, including disability discrimination laws.
State and local law may require employers to provide leaves for various reasons unrelated to disabilities, such as for victims of domestic violence to appear in court, for parents to attend school conferences, and for employees to donate bone marrow or to vote. Some states and other localities have implemented mandatory paid sick leave for certain size employers. Employers must be mindful of the laws that apply to companies of their respective size in the jurisdictions where their employees work.