Medical leave as a reasonable accommodation

We often receive calls from employees and employers about unpaid medical leave from work. Callers want to know whether an employee who has a serious health condition under the FMLA, but who cannot return to work after 12 weeks of FMLA leave, has any additional legal protections. The answer is that it depends. Many court cases recognize that finite and short additional periods of unpaid medical leave beyond the 12 weeks afforded by the FMLA can be a reasonable accommodation under the Americans With Disabilities Act. Employers who receive requests for additional unpaid medical leave should ask appropriate questions to determine the length of additional leave the employee is seeking, the likelihood that the additional leave will enable the employee to return to work, and how other employees who require leave for reasons unrelated to health or disability are treated. In the run of cases, finite and short periods of additional medical leave are a reasonable form of accommodation, particularly when the prognosis for recovery is favorable. This means that in many situations, an employer will be required to grant the request for additional unpaid medical leave, provided it does not impose or create an undue hardship. Of course, every case depends on its unique facts.

Legal Rights for Pregnant Workers under Federal Law

If you are pregnant, have been pregnant, or may become pregnant, and if your employer has 15 or more employees, you are protected against pregnancy-based discrimination and harassment at work under federal law. You may also have a legal right to work adjustments that will allow you to do your job without jeopardizing your health.

1.  If my employer knows that I am pregnant or may become pregnant, could I get fired? 

Under the PDA, employers are not allowed to discriminate against you based on the fact that –

◦you are pregnant;
◦you were pregnant;
◦you could become pregnant, or intend to become pregnant;
◦you have a medical condition that is related to pregnancy; or
◦you had an abortion, or are considering having an abortion.

In general, this means that you cannot be fired, rejected for a job or promotion, given lesser assignments, or forced to take leave for any of these reasons. An employer does not have to keep you in a job that you are unable to do or in which you would pose a significant safety risk for others in the workplace. However, your employer cannot remove you from your job or place you on leave because it believes that work would pose a risk to you or your pregnancy.

2.  What if I am being harassed because of pregnancy or a pregnancy-related medical condition?

Harassment based on pregnancy or a pregnancy-related medical condition is not allowed under the PDA and ADA. You should tell your employer about any harassment if you want the employer to stop the problem. Follow your employer’s reporting procedures if there are any. If you report the harassment, your employer is legally required to take action to prevent it from occurring in the future.

3.  What if I am having difficulty doing my job because of pregnancy or a medical condition related to my pregnancy?

You may be able to get an accommodation from the employer that will allow you to do your regular job safely.” Examples include altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home.

You may be able to get an accommodation under the PDA if your employer gives accommodations to employees who have limitations that are similar to yours, but were not caused by pregnancy.

You may be able to get an accommodation under the ADA if you have a pregnancy-related medical condition such as cervical insufficiency, anemia, sciatica, preeclampsia, gestational diabetes, or depression, that meets the ADA definition of “disability.” A condition meets the definition if it would, when left untreated, “substantially limit” one or more major life activities (e.g., lifting, standing, sitting, walking, reaching, bending, eating, sleeping, or concentrating) or major bodily functions (e.g., digestive, genitourinary, bowel, bladder, neurological, circulatory, or cardiovascular functions). A condition does not have to be permanent or severe, or result in a high degree of functional limitation, to be “substantially limiting.” It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. If your symptoms come and go, what matters is how limiting they would be when present.

You don’t need to have a particular accommodation in mind before you ask for one, though you can ask for something specific. However, you should know that the ADA doesn’t require your employer to make changes that involve significant difficulty or expense. Also, if more than one accommodation would work, the employer can choose which one to give you.

4.  What if there’s no way that I can do my regular job, even with an accommodation?

First, if you are being told by a health care provider that you can’t do your job safely and, for example, need light duty or can’t do your job because of a limitation or restriction, you may want to make sure that it’s really true. Your health care provider may not have considered the possibility that an accommodation would allow you to do your regular job safely. (See Question 3 above.) Things like reduced workloads and temporary reassignments often come with reduced pay, but your employer is not allowed to reduce your pay because you need an accommodation to do your regular job.

If you really can’t do your regular job safely, even with an accommodation, you might be able to get altered job duties under the PDA. Depending on how your employer treats non-pregnant employees with similar limitations, the PDA might require your employer to reduce your workload, remove an essential function of your job, or temporarily assign you to a different position if the employer does those things for non-pregnant employees with limitations similar to yours.

5.  What if I can’t work at all because of my pregnancy?

If you can’t work at all and you have no paid leave, you still may be entitled to unpaid leave as an accommodation. You may also qualify for leave under the Family and Medical Leave Act, which is enforced by the United States Department of Labor. More information about this law can be found at www.dol.gov/whd/fmla. Some states and localities have passed laws that provide additional protections

6.  What should I do if I need an accommodation, light duty, or leave because of my pregnancy?

Start by telling a supervisor, HR manager, or other appropriate person that you need a change at work due to pregnancy. You should inform your employer if the source of your problem at work is a pregnancy-related medical condition, because you might be able to get an accommodation under the ADA. An employer cannot legally fire you, or refuse to hire or promote you, because you asked for an accommodation, or because you need one. The employer also cannot charge you for the costs of an accommodation. Because employers do not have to excuse poor job performance, even if it was caused by a pregnancy-related medical condition, it may be better to ask for an accommodation before any problems occur or become worse.

Under the ADA, your employer may ask you to submit a letter from your health care provider documenting that you have a pregnancy-related medical condition, and that you need an accommodation because of it. Your health care provider might also be asked whether particular accommodations would meet your needs. You can help your health care provider understand the law of reasonable accommodation by bringing a copy of the EEOC publication Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work to your appointment.

7.  What should I do if I think that my rights have been violated?

Contact legal counsel immediately.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Lamberton interviewed for CBS Pittsburgh piece on FMLA

Allegheny County officials are paying UPMC more than a half million taxpayer dollars to deny workers their rights to leave under the Family and Medical Leave Act.  In this piece by CBS Pittsburgh, Charles A. Lamberton discusses how employers can interfere with protected FMLA rights by making unnecessary and burdensome requests for information beyond what the FMLA permits.

FMLA supports servicemen and women

Earlier this year, the Department of Labor issued a final rule implementing recent amendments that expanded the FMLA to meet the unique challenges confronting military families and those who care for our wounded warriors. Serving your country is an honorable and rewarding career, but one that also calls upon the strengths of a servicemember’s entire family. For every soldier on the front lines, there is a support team at home steadfastly marching forward, filling voids left while a loved one serves. Here’s how the law can help:

Family and Medical Leave Act> The FMLA’s Military Caregiver Leave provides time away from work to assist a service member who has suffered a serious illness or injury in the line of duty. A family member who works for a covered employer and meets the eligibility requirements of the FMLA may be entitled to take up to 26 workweeks of unpaid leave, during a single 12-month period. This leave is available to family members of current service members and certain veterans of the Armed Forces, including the National Guard or Reserves.

> The FMLA’s qualifying exigency leave provisions mean that a family member who works for a covered employer and meets eligibility requirements may be entitled to take up to 12 workweeks of unpaid leave to take care of issues related to the foreign deployment of the military member. Examples of qualifying exigencies include time to make or update financial and legal arrangements, to attend military events and related activities, to attend non-medical counseling and for post-deployment activities.

–> Thanks to these expanded protections afforded under the FMLA, family members can take leave to attend a deployment ceremony, spend time with an active duty soldier on rest and recuperation leave, or care for a wounded active duty soldier or veteran while having the peace of mind that comes from knowing that their employer-provided benefits − such as health insurance − are still available, and that their jobs will be there when they return.

No one should have to choose between the job they need and caring for the family that needs them − particularly the families of our men and women in uniform. The FMLA’s protections only have meaning and provide real benefits when our military, their families and veterans are aware of them and use them. Check out the Employee’s Guide to Military Family Leave, the Department’s employee and military worker information cards (in both English and Spanish), and other FMLA materials here.

EEOC explains protections for employees who experience domestic or dating violence, sexual assault or stalking

The Equal Opportunity Employment Commission (EEOC) has released a fact sheet advising how employment practices that discriminate against applicants or employees who have experienced domestic or dating violence, sexual assault, or stalking may violate Title VII. While the EEOC acknowledges that there is no federal statute directed at prohibiting such discrimination, the publication titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” seeks to advise people how such discrimination may violate provisions of Title VII.

In a series of questions and answers, the EEOC provides examples of situations in which discrimination based on an individual being the victim of domestic or dating violence, sexual assault, or stalking may violate the law. For example, if an employer terminated an employee after learning that she had been subjected to domestic violence based on the belief that battered women bring drama to the workplace, the employer would be violating Title VII’s proscription against disparate treatment based on sex-based stereotypes. Another example offered involves a hiring manager who does not hire a male applicant after learning that he has obtained a restraining order against a male domestic partner, based upon a belief that only women can be “real” victims of domestic violence.

The EEOC also points out that sex-based harassment may violate Title VII if it is sufficiently frequent or severe or if it results in a “tangible employment action.” For example, an employer who learns that an employee was the victim of abuse, viewed him or her as vulnerable and made advances, and then terminates the employee when the advances are rebuffed is in violation of the law.

The Americans with Disabilities Act (ADA) can also be implicated in situations that involve applicants or employees that are the victims of domestic or dating violence, sexual assault, or stalking. The ADA prohibits employers from treating people differently based on actual or perceived impairment. For example, an employer would be in violation of the law if he or she learned that an applicant is a witness for the prosecution in a rape case and is receiving counseling as treatment for depression, and chose not to hire the individual based on the belief that he or she may require time off due to depression.

In the last section, the document describes when an employer may be required to make reasonable accommodations under the ADA for employees or applicants who have been the victims of sexual assault, domestic violence, or stalking. For example, an employer may be required to provide time off for an individual who requires treatment for depression or anxiety following a sexual assault, even if the employee has no sick leave and the employer is not covered by the FMLA.

Some tips for expecting moms and new moms

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent significant difficulty or expense. The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

Harassment because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth is a no-no. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.