FAMILY MEDICAL LEAVE ACT (FMLA) and americans with disabilities act (ADA)
LEAVES FOR ILLNESS, PREGNANCY, active MILITARY service and others
Under the Family and Medical Leave Act ("FMLA"), an eligible employee is, inter alia, entitled to a total of 12 workweeks of unpaid leave during any 12-month rolling period due to birth or adoption of a child; a personal or familial serious health condition that makes the employee unable to do their job; military caregiver leave; and exigency leave. The employee is also entitled to be reinstated to her original (or an equivalent) position on return from such leave, except in cases where the employee is a “key employee”. The employer is entitled to request and receive medical certification of the need for leave, as is applicable.
The FMLA imposes several duties on both parties. The employee has a duty to give the employer notice of her need for FMLA qualifying leave and the employer is in turn, required to provide notice of the employee’s eligibility.
To protect these rights, the FMLA creates a private right of action, which includes the "interference" claim in which an employee can allege that a private sector employer interfered with FMLA rights and a discrimination and retaliation claim in which an employee can allege that a private sector employer took adverse employment action against the employee because of her use, or attempted use, of FMLA protected leave. An employee can enforce her rights by contacting the Department of Labor or pursuing the claim in court with the assistance of a private attorney.
Application of the FMLA to employees of federal agencies is slightly different and less onerous on the Agency.
All in all, the FMLA has several nuanced procedural requirements. Contact us to ensure that your organization is compliant or to ensure that your application for leave is not denied on a technicality.
ACCOMMODATION AND ANTI-DISCRIMINATION UNDER THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act ("ADA") prohibits employers from discriminating against "a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."
Discrimination under the ADA includes an employer's failure to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . . .". Further, "[a]n employer may not retaliate against an employee for opposing any employment practice made unlawful by the ADA."
Contact us for a free consultation if you are an employer attempting to become compliant with the ADA or if you are an employee seeking a reasonable accommodation.