Job Protected Leave Under the ada

The ADA provides certain job-related protections to individuals with disabilities and individuals who have a relationship or other type of association with a person with a disability. Under the ADA, a disability is defined as a physical or mental impairment that substantially limits a major life activity. The individual's medical condition must fit within this legal definition of a disability in order to receive the job protections granted by the ADA and typically, this is a very fact specific analysis.

One of the job protections provided by the ADA is that it requires employers to provide a reasonable accommodation to an employee with a disability, who requests such an accommodation. A reasonable accommodation is a change or adjustment that allows the individual with a disability to perform their job duties. A reasonable accommodation can be requested at any time. It can be requested during the application and interview process or at any point during the employment. There are no special forms that need to be filled out to request an accommodation, or specific words that need to be said. All an employee with a disability needs to do is notify the employer that a change is needed because of the individual’s disability. A reasonable accommodation request could be something as simple as an employee with a vision impairment notifying their employer that they have a hard time reading their computer screen, or an employee presenting the employer with a doctor’s note outlining work restrictions.

One common type of accommodation is to take time off work for treatment for a disability. A temporary leave of absence may be considered a reasonable accommodation, if it will allow the employee to return to their work following the treatment or care of their disability. An employee with a disability who needs a disability related leave of absence can request the accommodation by notifying the employer of the need for the leave or by providing the employer with a doctor’s not requesting the employee be granted time off due to their disability.

“A TEMPORARY LEAVE OF ABSENCE MAY BE CONSIDERED A REASONABLE ACCOMMODATION, IF IT WILL ALLOW THE EMPLOYEE TO RETURN TO THEIR WORK FOLLOWING THE TREATMENT OR CARE OF THEIR DISABILITY.”

LEAVE IN PEACE: The FMLA provides job protected leave to employees who need to care for their spouse, child, or parent who has is an illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment.

After a reasonable accommodation request is made, the employer and employee should engage in an interactive process, and work together to figure out the best options for the employee. The employer is allowed to request documentation from the employee if their disability is not obvious. The employer can also ask the employee to explain why they need a reasonable accommodation. The employee is not entitled to the accommodation that they prefer. An employer has complied with the ADA so long as they grant an accommodation that is reasonable.

Employers are not always required to grant an accommodation under the ADA. An employer does not need to grant a reasonable accommodation if it would cause an undue hardship to the employer. Also, if an employee cannot perform the essential functions of their job duties, even with a reasonable accommodation, then they are not entitled to job protections under the ADA. Employees who work for very small employers may not be entitled to job protections under the ADA as well, as it only applies to employers who have 15 or more employees.

Job Protected Leave Under the FMLA

Employees with disabilities may also be entitled to job protected leave under the FMLA. While the ADA provides job protected leave specifically for individuals with disabilities, the FMLA provides job protected leave to employees with a serious health condition, who cannot perform the functions of their job; to employees who need to care for their spouse, child, or parent who has a serious health condition; or for other qualifying reasons. A serious health condition under the FMLA is an illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing treatment by a healthcare provider. An employee with a disability may have a health condition that qualifies as both a disability under the ADA and a serious health condition under the FMLA.

An employee who needs FMLA leave must provide notice to the employer, either written or oral, of their need for leave. The employee should provide the employer with enough information so the employer knows that it may be a job protected leave under the FMLA. The notice should be given to the employer at least 30 days prior to the FMLA leave if the employee knows about the need for leave far enough in advance. Otherwise, the employee should give the employer notice of the need for leave as soon as possible. The employer may ask for additional information to determine if it is an FMLA qualifying leave.