Updated: 06/25/2004
FAQ Leave Legal Topics
FREQUENTLY ASKED QUESTIONS
ABOUT THE AMERICANS WITH DISABILITIES ACT,
THE FAMILY AND MEDICAL LEAVE ACT,
AND THE WORKER’S COMPENSATION ACT AS THEY
RELATE TO AN EMPLOYEE’S REQUEST
FOR A LEAVE OF ABSENCE
Q: What is the Americans with Disabilities Act?
Title I of the ADA makes it illegal to discriminate in employment against qualified individuals with disabilities. Employers have an obligation to make reasonable accommodations to the known physical or mental limitations of an individual, unless the employer can show that the accommodation imposes an undue hardship or the person poses a significant risk of substantial harm to himself or others. A leave of absence may constitute a reasonable accommodation.
Q: What is the Family and Medical Leave Act?
The FMLA provides up to 12 work weeks of unpaid, job-protected leave in a twelve month period for one of four qualifying reasons: (1) the birth of a child and the first year care of the newborn; (2) the placement of a child through adoption or foster care and the first year care of the child; (3) the need to care for a parent, spouse or child with a serious health condition; and (4) the serious health condition of the eligible employee. NC State’s FMLA policy.
Q: What is the Worker’s Compensation Act?
The Worker’s Compensation Act provides protection and benefits to employees who are injured accidentally on the job. The law covers occupational injuries and illnesses arising out of and in the course of employment.
Q: What is the relationship between the ADA, FMLA, and Worker’s Compensation?
The ADA and FMLA are federal laws that require an employer to grant medical leave to an employee in certain circumstances. The Worker’s Compensation Act is a state law that protects and provides benefits to an employee who has been injured accidentally or who has contracted an occupational disease on the job.
Q: How do I know if the FMLA is applicable to an employee’s leave request?
The FMLA provides minimum leave standards for family and medical leave. The law gives "eligible employees" up to 12 work weeks of unpaid leave during any 12 month period for one of the four qualifying reasons. An "eligible employee" is a probationary or permanent employee who has worked for NC State for 1,040 hours during the previous 12 month period. A temporary employee may be eligible if he or she has worked for the State for 12 months and has worked at least 1,250 hours in the previous 12 months. An employee may substitute accrued sick and vacation leave for unpaid leave in accordance with the policy.
Q: What constitutes a "serious health condition" under the FMLA?
The FMLA defines a "serious health condition" to mean "an illness, injury, impairment, or physical or mental condition that involves … inpatient care … or continuing treatment by a health care provider" that results in absences of more than three consecutive days and which makes an employee unable to perform the essential functions of the job. Treatment by a health care provider must be for two or more times or "on at least one occasion which results in a regime of continuing treatment."
Q: How do I know if the ADA is applicable?
Title I of the ADA requires an employer to make reasonable accommodations to the known physical or mental impairments of an otherwise qualified individual with a disability. A qualified individual is one who can perform the essential functions of the job with or without a reasonable accommodation.
Q: What is a "disability" under the ADA?
A "disability" includes both physical and mental impairments. There is a two step analysis in determining whether a person has a disability. First, the person must either have an impairment, have a record of impairment or be regarded as having an impairment. Second, the impairment must be one which substantially limits a major life activity, like walking, seeing, hearing, caring for oneself, breathing, speaking, or working. The Supreme Court has held that an employer may take into consideration corrective measures (e.g. eyeglasses and contact lenses) and mitigating measures (e.g. medicine) in determining whether a person has an ADA disability. The Fourth Circuit has held that intermittent manifestations of a medical condition may not constitute a disability (e.g. epilepsy).
Q: Is a "serious health condition" under the FMLA the same as a "disability" under the ADA?
Not necessarily. Some "serious health conditions" like pregnancy, a hernia or a broken arm are not ADA disabilities because they are only temporary conditions. On the other hand, continuing treatment for cancer may constitute both a serious health condition and an ADA disability.
Q: Does a person who has an occupational injury also have an ADA disability?
Not necessarily. The Worker’s Compensation Act uses the term "disability" to refer to the loss of earning potential, not physical infirmity. The ADA definition of the term refers to a physical or mental impairment, without any regard to earning capacity.
Q: Does a person who has an occupational injury or illness also have a "serious health condition" under the FMLA?
If the person is out of work for more than three days or requires continuing treatment by a medical provider, the injured employee would also have a serious health condition. The Office of State Personnel rules, however, do not allow an employer to count time out for a worker’s compensation injury as leave under the FMLA if the person is out of work drawing temporary total disability.
Q: Is pregnancy covered under any of these laws?
Prenatal care, child birth and six to eight weeks postpartum care are considered a "serious health condition" under the FMLA and time off counts as part of an employee’s 12 week leave entitlement. While pregnancy is considered a disability for medical benefits purposes, it does not constitute a disability under the ADA.
Q: Which laws apply if an employee requests leave to care for an ill family member?
The FMLA allows leave for an eligible employee to care for a spouse, child, or parent who has a serious health condition. A child is one who is under the age of 18 or who is 18 or over and is incapable of self care due to a mental or physical disability. A parent does not include a parent-in law, but does include someone who has acted in loci parentis to the employee. "To care for" a family member means that the employee is required for the psychological or physical care of the spouse, child or parent.
Q: How much leave is an employee entitled to take?
The FMLA provides 12 work weeks in any 12 month period. A work week includes a three day week, like at Thanksgiving, or a four day week, like Labor Day week. FMLA leave may be taken intermittently at intervals as small as 15 minutes per day. Leave may be taken on an intermittent basis if medically necessary or if the supervisor approves.
The ADA has no specific mandate for what amount of leave constitutes a reasonable accommodation. The amount of leave is decided on a case by case basis. The courts have held that an indefinite leave request is not protected under the ADA. Reduced leave schedules or modified work schedules may be reasonable accommodations.
Worker’s Compensation has no time frame. Claims are generally closed when an employee reaches maximum medical improvements and returns to work without restrictions.
An employee may not take more than twelve months of leave without pay under any of these laws, unless the appropriate University official approves.
Q: If the FMLA 12 week leave entitlement is exhausted and the employee is unable to perform the essential functions of the job, what obligations does the employer have in providing additional leave?
None. Except if the employee also has a covered disability, the ADA may require additional leave as a reasonable accommodation beyond 12 weeks. A determination for additional leave is made on a case by case basis.
Q: Are there forms that must be completed to request leave?
Yes. NC State requires employees to complete separate forms and to provide medical documentation. An employer has the right to obtain medical information for purposes of validating the request for leave. Under the FMLA, an employer may obtain a second and third medical opinion at the employer’s expense.
Under Worker’s Compensation, the supervisor must complete the Supervisor’s Incident Accident Form and the NC Industrial Commission Form 19. All work place accidents must be reported immediately to the Environmental Health and Safety Center (515-6871). It is recommended that the injured employee report to Blue Ridge Primary Care for treatment.
The University has developed reasonable accommodation request
procedures which can be found on the Internet at http://www.ncsu.edu/provost/offices/affirm_action/
disability_resources/accommodation_procedures.html
Q: How much notice must an employee give prior to taking leave?
Under the FMLA, the employee must give 30 days advanced notice if leave is foreseeable. In the event of an emergency, an employee must give notice as soon as practicable, (i.e. one or two days). It is the employer’s responsibility to designate the leave as FMLA. The FMLA also requires that a scheduled or planned medical leave be done so as not to unduly disrupt business operations. Under Worker’s Compensation, the employee must notify a supervisor immediately after a workplace injury. The ADA has no notice requirements.
Q: Is the medical information provided to an employer confidential?
Yes, to a certain extent. The FMLA and ADA require that all medical documentation be kept separate and apart from personnel files. This measure protects the confidential nature of these records. However, a supervisor may be informed of an employee’s medical condition, necessary accommodations, or restrictions. An employer may share medical information with its health care provider. The Worker’s Compensation Act requires that medical information be shared with the Industrial Commission and the employer. First aid and safety personnel may be informed in certain situations.
Q: What rules apply to return to work after a leave?
In case of personal illness under the FMLA, and under ADA and Worker’s Compensation, the employee must provide a fitness to report to duty certification from a health care provider. Under FMLA, an employee is entitled to return to the same or an equivalent position, unless the employee would not be entitled to the job if he or she had been working. Under the ADA, an employee is entitled to return to the same job unless the employer demonstrates that holding the job open would impose an undue hardship. Worker’s Compensation has no guaranteed job privileges. Though, an employee may not be terminated for filing under worker’s compensation.