Some questions to consider:

An ADA-protected employee cannot return from medical leave on their anticipated return-to-work date because they cannot perform the essential functions of the job. Are you required to hold their position open indefinitely until they recover?

You ask an employee to submit certification of the need for FMLA leave. When they fail to provide proper certification, can you legally deny his FMLA request?

An pregnant employee takes leave because of complications. She asks for a transfer to a light-duty position so she can return to work. Is it a violation of pregnancy discrimination laws to deny her request?

An injured employee requests a device to help do the job. Are you required to enter into an "interactive process" to review this accommodation request?

This file is a summary of several major federal laws that deal with these issues and many others.

AMERICANS WITH DISABILITIES ACT (ADA) -- Under the ADA, you may have to provide disability leave as an accommodation when employees fulfill at least one of these conditions:

1. The employee has a physical or mental impairment that substantially limits a major life activity.

2. The employee has a record of having an impairment.

3. The employee is regarded as having an impairment.

Reasonable accommodation: Time away from work as a reasonable accommodation has positioned employers in the middle of a legal tug-of-war. On the one side, courts generally rule that regular and predictable attendance is necessary for an employee to be considered otherwise qualified for a position.

On the other side, the Equal Employment Opportunity Commission’s interpretive guidance specifically allow for an employee to use accrued paid leave as an accommodation for their disability.

Case in point: An employee has a chronic case of psoriasis. When dormant, she had noticeable skin lesions, her medication caused her to lose her fingernails and hair, and she was embarrassed by other people’s reactions to her appearance. During flare-ups, she would become completely debilitated. After two years on the job the employee experienced a flare-up of her psoriasis. Her doctor wrote a note indicating that she could return to work by a certain date if she had recovered. When that date came and went and the employee had not recovered, she gave her employer another doctor’s note indicating that she would need another month of leave. A month later, when the employee recovered enough to return to work, her employer told her not to bother. But she did bother to sue the company under the ADA.

Issue: Is leave a reasonable accommodation under the ADA?

Ruling: A court of appeals ruled that the employee’s condition qualified as an ADA-covered impairment, and sent her case back to the trial court to determine whether it substantially limited a major life activity.

Accommodation implications: The court refused to rule out the possibility that a medical leave could constitute a reasonable accommodation. It pointed out that the employer had a medical leave policy, which allowed employees to take 90 days of unpaid leave followed by a 90-day extension, and routinely granted medical leave to employees. Not to mention, the employee had never before (or after) requested an extended leave. And so the court ruled that it was a question of fact whether a leave of absence would be reasonable accommodation.

Comment: The EEOC’s most recent enforcement guidance on reasonable accommodation and undue hardship under the ADA specifically permits the use of accrued paid leave, or unpaid leave, as a form of reasonable accommodation when it becomes necessary because of an employee’s disability for a number of reasons, including, but not limited to:

-- obtaining medical treatment (surgery, psychotherapy, substance abuse treatment, or dialysis);

-- receiving rehabilitation services or physical or occupational therapy;

-- recuperating from an illness or an episodic manifestation of the disability;

-- obtaining repairs on a wheelchair, accessible van, or prosthetic device;

-- avoiding temporary adverse conditions in the work environment (an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis);

-- training a service animal (a guide dog);

-- receiving training in the use of Braille or to learn sign language.

Essential functions: There is nothing in the ADA that requires you to hold positions open indefinitely for employees on leave who cannot perform the essential functions of their jobs. Courts repeatedly dismiss disability lawsuits filed by employees who are no longer qualified to perform their positions.

Case in point: An employee took a 30-day disability leave to treat major depression and anxiety disorder. During that time, her doctor extended the leave for an additional three months, claiming she was still unable to work as a result of her condition. One week before the employee’s scheduled return, her doctor concluded that she could not return on the planned date. The next day, the company fired her, pointing to her inability to work. The employee sued, claiming that her discharge was based on her age, sex, and disability.

Issue: Must an employer hold open an ADA-protected employee’s job indefinitely? Ruling: A court dismissed her claim. Not only had the employee been unable to work for 14 weeks before her termination, but she remained unable to work up until she appeared in court. Therefore, she was unable to prove that she was qualified for her position — an essential element of the ADA.

Comment: If the non-essential elements of a job can be delegated to other employees, the ADA requires you to do so. But you are not required to delegate essential job functions or to make any changes that result in economic hardship for the company or cause undue hardship for other employees.

Interactive process: The ADA recommends that employers and employees engage in an interactive process when selecting a reasonable accommodation. Some courts have held that the interactive process is essential when considering accommodations. Other courts have ruled that employers are not required to engage in an interactive process to determine whether a reasonable accommodation is available.

Case in point: After an employee suffered an on-the-job back injury, his doctor set permanent restrictions on heavy lifting. His employer created a light-duty job that normally would have allowed him to continue in the job for 60 workdays. After remaining in the job for nearly five months, the employee was told that he could go on injury leave because his medical restrictions prevented him from returning to his original position. The employee requested a lifting device to help him perform his job, or a desk job that would allow him to avoid lifting altogether. When both requests were turned down, he sued, claiming a failure to accommodate.

Issue: Does an employer violate the ADA if it fails to engage in an interactive process when considering accommodation requests?

Ruling: A court dismissed his claim, ruling that an employer is not required to provide an employee with a disability the most technologically advanced equipment; nor is it required to eliminate or reassign specific job functions, to alter the nature of the job, or to find or create a new job for the employee. The court also ruled that an employer is not obligated to engage in an interactive process with an employee in an effort to find a reasonable accommodation. The court said the employee has the burden of showing that a specific accommodation exists that is reasonable. If the employee can point to an available accommodation, the burden shifts to the employer to show that the accommodation would pose an undue hardship.

Comment: Although this company was well within its rights in refusing to create a permanent light-duty job or purchase expensive equipment as an accommodation, its refusal to enter into an interactive process is a violation of the ADA in some jurisdictions. The Third, Fifth, and Seventh Circuits have ruled against employers which failed to engage in an interactive process. The EEOC says the language of the ADA defines accommodation as an interactive process between an employee and an employer. Not only that, the courts tend to look favorably on employers that make a good-faith effort toward ADA compliance.

FAMILY AND MEDICAL LEAVE ACT (FMLA) The FMLA grants eligible employees the right to take up to 12 weeks of unpaid leave in any 12-month period:

-- for the birth of a child or the placement of a child with the employee for adoption or foster care; if the employee is needed to care for a spouse, child, or parent with a serious health condition;

-- if the employee’s own serious health condition renders the employee unable to do their job.

Serious health condition: A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment for more than three consecutive days by a health care provider.

But many employers have problems determining where to draw the line between routine and serious health conditions.

Case in point: An employee advised his supervisor that he needed time off to take his daughter for surgery and care for her during her recovery. The manager gave him an FMLA leave form and told him that his leave would likely qualify for FMLA protection. The day of her surgery he reported to work as usual, but did not report to work the next two days. He told a supervisor that he needed time off to care for his daughter and also mentioned that he had poison ivy. When he finally returned to work, he gave his supervisor a medical excuse saying he had been under medical care. Since the company did not consider poison ivy treatment to trigger medical leave under its attendance policy, he was assessed disciplinary points for his absences. Over the next few days, he was given additional points for unrelated absences, and was eventually terminated for excessive absenteeism. Since the employee submitted his FMLA certification confirming his need to care for his daughter the day before his discharge, he sued under the FMLA.

Issue: Does poison ivy qualify as a serious health condition under the FMLA? Ruling:

A court ruled that poison ivy does not qualify for FMLA protection -- and it concluded that the employee may have a claim regarding the days he cared for his daughter.

Comment: This decision might have gone the other way if the employee had been able to produce medical documentation that he had been treated for poison ivy. Some courts have gone so far as to rule that even a common cold can qualify for FMLA leave under certain circumstances.

FMLA certification: Although it is an employee’s responsibility to provide certification of his/her need for FMLA leave, employers’ requests for certification and other leave forms must make it clear what the employee is expected to do to qualify for leave.

Case in point: An employee faxed his employer an absence report, stating that he would be out of work for roughly 20 days due to chronic hepatitis. When 20 days came and went, he sent another absence report, explaining that he was still too sick to return to work. During his absence, the employee used paid medical and vacation leave. After he sent the second notice, the employer asked for certification under the FMLA. When he did not return the certification, he was fired. He sued the company for violating his FMLA rights.

Issue: Does an employer have a right to fire employees who do not fulfill their FMLA certification obligations?

Ruling: A court ruled that the boilerplate language used by the company in its request for FMLA certification could have led the employee to believe that he did not have to respond. Not only that, the form did not warn the employee that he could be fired for failing to respond. Since the employee could not have known the importance of filing the proper certification, he deserved a full trial.

Comment: Never send a standard form to employees explaining your FMLA certification requirements. Each request should be handled on a case-by-case basis with clear, easily-understood language. Spell out exactly what you want the employee to do and what may happen if your request is ignored. Also, have written policies in place that describe employee leave provisions under the FMLA.

Equivalent position: The FMLA requires you to restore an employee returning from leave to the same or an equivalent position. In some instances, you may not be able to return an employee to an equivalent position. When this happens, you must consider your options carefully, or you may end up in court.

Case in point: After suffering an on-the-job injury, a warehouse manager took FMLA leave. While he was on leave, his employer had to replace him with his second-in- command. When he returned to work, he was offered a job as a sales rep at his managerial salary until the end of the year. The next year, however, the company put the manager on a "salary plus incentives" schedule. After doing the math, the manager calculated that the change would not only result in a significant drop in his salary, but also would devalue his vacation and sick days by 10%. As a result, he sued under the FMLA for damages to make up for his loss in salary, and to make up for the fact that his new job was more susceptible to elimination.

Issue: When is a job truly "equivalent" under the FMLA?

Ruling: In giving the manager’s case a green light to proceed, a court ruled that loss of job security could be compensable under the FMLA if there were a legal or contractual right to that security. The court also ruled that a position is not "equivalent" if an employee can show a loss of wages and a devaluation of vacation and sick pay.

Comment: To avoid FMLA legal trouble, you should make every effort to restore an employee returning from leave to the same job performed before the leave commenced. When this isn’t possible, you must return the employee to a position comparable in salary, benefits, and status, or otherwise face a potential FMLA lawsuit.

Reinstatement rights: Although the FMLA requires you to restore an employee returning from family leave to the same or an equivalent position, there are limited circumstances under which you have the right not to reinstate an employee at all.

Case in point: An employee with spotty attendance and a history of performance problems was given an action plan for improvement. When she failed to meet her performance goals, she was placed on probation just before she took FMLA leave for medical reasons. During her leave, her employer told her she would not be restored to her old position because of her failure to live up to the performance improvement plan. She sued under the FMLA, claiming that her job restoration rights were denied.

Issue: Does the FMLA require employers to restore poorly performing employees?

Ruling: Evidence showed that the termination decision was made prior to the employee’s request for FMLA leave. Therefore, the employee could not bring a restoration claim.

Comment: This company won its case because it had the documentation to support its termination decision. It’s always a sensitive decision to fire employees while they are out on any form of leave. This company was able to do so because it had the evidence to show that the employee’s job was in jeopardy before she communicated her need for FMLA leave.

PREGNANCY DISCRIMINATION ACT (PDA) The PDA requires you to treat employees on pregnancy leave the same way you would treat employees on leave for other medical reasons. If your medical leave policy grants employees certain benefits while they are on leave, your pregnancy leave policy must guarantee employees the same privileges.

Pregnancy leave policies: Remember that timing is everything when it comes to pregnant employees. If you fire an employee shortly after she has announced her pregnancy, your motives will immediately become suspect. Introducing a new policy or changing an existing one can also arouse suspicion.

Case in point: Shortly after hiring a pregnant employee, a company issued its first unpaid leave policy, which included pregnancy leave information. It stipulated that employees with one or more years of seniority would be returned to their existing or comparable jobs. The policy also stipulated that the company reserved the right to fill, alter, or eliminate any vacant position held by employees on pregnancy-related leave with less than one year of service. While the employee was on maternity leave, the company reorganized and eliminated her position. She sued under the PDA, claiming that she was treated unfairly because of her pregnancy. She also claimed that the sudden arrival of a leave policy was suspicious, since she was the only pregnant person at the company.

Issue: Does a company have the right to implement new or change existent policies concerning pregnancy leave?

Ruling: A court dismissed her case. There is no evidence to show that the new leave policy was written directly for the pregnant employee. Not only that, it treated all types of leave equally and did not treat pregnant employees more harshly than other employees who required medical leave. The court ruled that the company had good business reasons for eliminating her position.

Comment: As with any other decision to fire an employee who is on leave, you must be able to support your decision with sound business reasons and objective evidence.

Reasonable accommodation: A woman who leaves her position because of pregnancy or pregnancy-related complications generally must be given the chance to return to her job or to a comparable job, providing she is able to perform the job’s essential functions. You do not have to create light-duty positions or violate company policy in order to accommodate an employee returning from pregnancy leave.

Case in point: A pregnant woman suffering from back problems was given a 20-pound lifting restriction. She requested a transfer to a position that did not require lifting. Her request was denied because of a company policy that restricted light-duty transfers to employees who had suffered on-the-job injuries. As a result, the employee went on unpaid leave and later sued the company under the PDA.

Issue: Does the PDA require that pregnant employees be given light-duty positions when they are not able to meet essential job requirements? Ruling: Not according to this court. The company treated pregnancy the same way it treated all employees who suffered off-the-job injuries or illnesses. The PDA requires that pregnant employees be given fair, not preferential, treatment.

Comment: You must give the same accommodations to pregnant women that you would give to any other temporarily disabled employee - modifying tasks, providing alternative work assignments, or simply relieving them of functions that cannot be performed safely. This company won because it was able to prove that its light-duty policy was applied evenly to all employees. Check local law carefully before forcing a pregnant employee to go out on unpaid leave. Many jurisdictions have passed legislation that goes beyond the protections afforded by the PDA.