The Essential Guide to Family & Medical Leave

248 | the essential guide to family and medical leave
Chapter Highlights
An employee covered by the FMLA and other
employment laws is entitled to every protection
of every applicable law. If the laws call for
different approaches to the same situation,
you must apply whichever law is more beneficial
to the employee.
An employee who has a serious health condition
under the FMLA may also have a disability
under the Americans with Disabilities Act
(ADA).
• Only qualified employees with disabilities—
those who can perform the essential
functions of the job, with or without a
reasonable accommodation—are protected
by the ADA.
• Employers must provide reasonable accommodations
to allow employees with disabilities
to do their jobs. This may include more
time off than the FMLA requires, changes to
the job, or a transfer to another position.
An employee who does not return to work
at the end of FMLA leave may be entitled to
continuing health benefits pursuant to the
Consolidated Omnibus Budget Reconciliation
Act (COBRA).
Title VII prohibits employers from discriminating
based on race, color, national origin,
religion, or sex (including pregnancy) in any
aspect of employment, including providing
leave.
Time an employee spends on leave to serve
in the armed forces counts as time worked
when determining the employee’s eligibility for
FMLA leave.
State laws also give employees the right to take
time off for a variety of reasons, including family
and medical leave, adoption, and pregnancy.
• Some of these laws cover smaller employers,
have more lenient eligibility requirements
for employees, allow longer periods of leave,
allow leave to care for a broader range of
family members, or allow leave for different
purposes from the FMLA.
• If an employee takes leave that is covered by
both the FMLA and a state law, that leave
counts against the employee’s entitlement pursuant
to both laws—and the employee need
comply only with whichever law’s notice and
certification requirements are more lenient.
• If an employee takes leave that is covered by
the FMLA or the state law but not both, the
employee may be entitled to more than 12
weeks of total leave.
An employee whose serious medical condition
comes from a workplace injury or illness is
probably also entitled to workers’ compensation
benefits; an employee who is out on leave for a
workers’ comp injury or illness almost always has
a serious health condition covered by the FMLA.
• An employee who is on FMLA leave does not
have to accept a “light duty” position; however,
an employee who rejects such a position
may no longer be entitled to workers’ comp
benefits.
• Most state workers’ compensation laws do
not require employers to hold an employee’s
job for the duration of his or her workers’
comp leave; this might come into play if an
employee uses up his or her FMLA leave and
still needs time off.