"Do you remember a time when the decision to grant or deny a leave of absence to an employee for a medical or family issue was a simple matter? Probably not, unless you have been in business for many years.
Beginning in 1992, when Title 1 of The Americans With Disabilities Act (ADA) became effective, employers with 15 or more employees started having to evaluate medical leave requests in the context of a law protecting individuals with current, past or merely perceived disabilities. This requirement was extended to employers with eight or more employees when the Kentucky legislature amended the Kentucky Civil Rights Act (KCRA) to add disability as a protected category. Then the Family and Medical Leave Act (FMLA) went into effect, requiring employers with 50 or more employees to grant eligible employees twelve unpaid weeks of leave each year for qualifying medical and family reasons. The Workers' Compensation Law, which had applied for many years to employees who suffered workplace accidents or diseases, now had to be reanalyzed in the context of additional and sometimes potentially conflicting obligations.
As a result, today's employers must consider the possible application of at least four different laws every time an employee requests a leave of absence. Sorting through the often complicated definitions, procedures, requirements and prohibitions can seem overwhelming.
But, as with anything else, practice can help! As you read the hypothetical vignette below about Top Gun Movie Studios, think about how you would handle the situation. Then see what Top Gun's lawyer advised.
Baby makes three
Newlyweds Tom and Katie work for the same employer, Top Gun Movie Studios, at its Lexington location. Top Gun employs 100 people in Lexington.
Tom and Katie began full-time work the same day, May 1, 2007. On August 10, 2007, they announced that Katie was pregnant, and that the baby is due May 10, 2008. They tell Top Gun that they each want to take 12 weeks of leave under the Family and Medical Leave Act after the baby is born.
Top Gun's HR manager tells Tom and Katie that she doesn't know if the leave will be permitted — it's a long time off, so they will need to ask again later. She tells them that, in any event, she doesn't think they are entitled to more than six weeks each.
Tom is furious and begins to jump up and down on the couch. He demands a response and insists that the FMLA permits each employee 12 weeks of leave. He also insists that Katie is entitled to take as much time off as she needs under the ADA.
To be sure she handles the matter correctly, the HR manager calls Top Gun's lawyer, Jeremy McGuire.
Jeremy's advice
Since Tom has requested leave under the FMLA, let's look first at whether he and Katie are eligible for leave under that law. To be eligible for FMLA leave, an employee must (1) work for an employer with at least 50 employees, (2) work at a work site where at least 50 or more employees are employed by the employer within a 75-mile radius, (3) have been employed (at the time leave is to begin) for at least 12 months, and (4) have worked at least 1,250 hours in the last 12 months (at the time leave is to begin). Tom and Katie meet all of these requirements. Next, we determine whether the leave is for one of the FMLA's four qualifying reasons: The birth and care of a newborn child is a qualifying reason. Therefore, Tom and Katie will be entitled to take FMLA leave for the birth and care of their baby.
However, although the FMLA normally provides 12 weeks of unpaid leave for eligible employees, when a husband and wife both work for one employer, they are entitled to a combined total of twelve weeks' leave, not twelve weeks each.
Pay attention, though, to the timing of Top Gun's response to the request. A written response must be provided within one or two days after the request is made, if feasible — even if the leave itself will not be taken until some future date. An optional form for this response can be found on the U.S. Department of Labor's Web site at www.dol.gov/esa/whd/fmla/#form.
As for Tom's insistence that Katie should be entitled to time off under the ADA, he must have received some bad advice. Normal childbirth and newborn care do not fall within the definition of disability under the ADA (or KCRA). There is no indication, at least at this point, that Katie's pregnancy and childbirth will be anything but normal. If complications do develop due to a disability, it may be necessary to determine whether reasonable accommodation (in the form of leave or otherwise) must be provided at that time.
We don't have to think about the workers' compensation law, since it is probably safe to assume that Katie's condition did not arise in the workplace!
In future issues, we'll consider other employee requests for leave, and provide more opportunities for practice. Stay tuned!
Wendy Becker, a member in the Lexington office of Greenebaum Doll & McDonald PLLC, advises and defends employers in all types of employment-related matters. She has been recognized by Chambers USA as a leading Kentucky employment law attorney since 2004 and was recently named as a Kentucky Super Lawyer for 2007. Wendy can be reached at wlb@gdm.com.
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