The Ever Present Threat of a Disability Discrimination Lawsuit
By John Mavros Attorney at Law, Partner, Fisher & Phillips, LLP | September 24, 2017
Given the increasing number of disability discrimination lawsuits, it is imperative that employers know and understand an employee's rights to leave and reasonable accommodation when injured or disabled. A workers compensation injury is not only covered by rules in the workers compensation system, but is typically also governed by requirements, obligations, and limitations under other important statutes.
There are three distinct areas of law that have very different purposes. Under the Family Medical Leave Act, an employee is afforded 12 weeks of job protected leave for a "serious health condition." The Americans with Disabilities Act prohibits disability discrimination requiring an employer to reasonably accommodate a "disability." In addition, an employer is obligated to maintain workers compensation insurance to compensate employees for work related injuries. Of course, an employer must not give any impression that they are retaliating against an employee for exercising any of the above rights. Know the Rules:
1. Family Medical Leave Act ("FMLA")
The FMLA is concerned with providing a minimum level of unpaid,job-protected leave to eligible employees. It protects those employees from adverse treatment because of the need for leave. The FMLA is largely known for permitting an employee to take leave for the birth or adoption of, and in order to care for, a child. However, the FMLA also permits leave for the employee's own "serious health condition."
An employee is eligible for leave under the FMLA if he or she has worked for the employer for at least 12 months, has worked for the employer at least 1,250 hours during the 12 consecutive preceding months, and works at a work-site where there are at least 50 employees within a 75-mile radius. The FMLA provides up to 12 weeks of unpaid leave when the leave is due to an employee's health condition.
The FMLA also requires a covered employer to grant an employee intermittent leave or a reduced work schedule when such leave is "medically necessary" for the employee's own serious health condition. In this situation, the employer can temporarily switch the employee to an alternative position, butonly if the employer can clearly demonstrate that recurring temporary leaves are not feasible. The employer cannot reduce the employee's pay or benefits under the FMLA. When an employee returns from FMLA leave, he or she must be reinstated to the same or an "equivalent position" with equivalent benefits.
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