The Complexities of Leave of Absence Law

The Family Medical Leave Act (FMLA) provides eligible employees with 12 weeks of unpaid medical leave per year, but employers must consider additional leave required by a number of other laws, including the Americans with Disabilities Act (ADA), state disability anti-discrimination laws and, increasingly, state and municipal paid sick leave laws that address absences arising from minor illnesses.

For many employers, FMLA administration is less of a problem than the ADA, which imposes an affirmative obligation to reasonably accommodate employees with a disability. Courts have held that a leave of absence may be a form of reasonable accommodation, but neither the ADA nor its governing regulations provide any tangible guidance about when leave must be provided. Given the ADA’s mandate that accommodations be managed case-by-case, it can be difficult for large organizations to achieve consistent leave management across their businesses.

Some employers have adopted policies setting a maximum amount of job protected leave, but the EEOC considers these policies to be an inflexible interference with the ADA’s individualized interactive process. Some courts have rejected the idea that uniform policies are always unlawful. A recent panel of the Court of Appeals for the Tenth Circuit upheld an employer’s policy limiting medical leaves of absence to six months.

Employers must also be aware of the requirements imposed by state and local leave and disability accommodation laws. Some of them impose even greater obligations on employers than their federal counterparts.