Setting up leave policies is something that all employers must pay attention to. Not only do leave policies directly affect the welfare of employees, but they must be compliant with state and federal laws. When an employee falls ill or becomes injured, the employer has the responsibility to ensure that they are given due accommodation and assistance. One of the first things that the concerned employee may request is a disability leave.
What is a disability leave?
Disability leave is a type of leave that is taken by an employee for several reasons. Disability leave may refer to a leave that is allowed within an employer’s policy like a short-term disability. The responsibility to assess and consider the reason falls on the employer. According to the Americans with Disabilities Act (ADA), disability leave is a type of leave that is taken by an individual as a reasonable accommodation for a disability.
What are the federal laws that apply to individuals with disabilities?
Two federal laws can cover individuals who have disabilities. These two laws are the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Keep in mind that the laws that apply to the employee depend on the situation and employer. Let’s look into each one briefly.
Americans with Disabilities Act (ADA)
A federal law that protects the rights of people with disabilities. It forbids discrimination against individuals with disabilities in multiple areas of public life.
Applies to employers (including state or local governments) with 15 or more employees.
Under the ADA, disability is defined as “physical or mental impairment that substantially limits one or more major life activities.”
Family and Medical Leave Act (FMLA)
A federal law that aims to help workers balance their family responsibilities and job by allowing employees 12 weeks of unpaid leave per year for specific reasons such as a serious health condition or to take care of an immediate family member with a serious health condition.
Applied to private employers with 50 or more employees. These employees must work within 75 miles of the worksite.
How long can a disability leave be under the Americans with Disabilities Act (ADA)?
Under the ADA, no set leave period is required because the accommodations will depend on the specific individual circumstances of each case. Meaning, the disability leave duration will vary case by case. Employers should generally provide “reasonable accommodations” (such as leave, change in facilities, policies, or how work is performed) to an employee with a disability unless the accommodation will cause “undue hardship” to the employer. Guidelines on “undue hardship” can be seen on the U.S. Equal Employment Opportunity Commission (EEOC) website.
How long can a disability leave be under the Family and Medical Leave Act (FMLA)?
Under the FMLA, eligible employees are allowed a total of twelve weeks per year for treatment of serious health conditions and recovery.
Does maternity leave fall under disability leave?
Under the ADA, pregnancy does not fall under the definition of a disability. However, pregnancy-related leave can be covered under the ADA guidelines. This can happen when the pregnant employee develops pregnancy-related impairments or health conditions like gestational diabetes, anemia, or cervical insufficiency.
I want to file for disability leave. Do I have to provide medical information and records?
Employers can ask employees to provide medical information when they are requesting a disability leave. The information should only be limited to those that are necessary to confirm the disability of the employee and provide guidance on how long the disability leave period should be. All medical information should be kept confidential at all times. They must also be stored separately from other employment records.
Can I lose my job while I am on disability leave?
If an employee is on disability leave, their job should, under the law, be protected. If an employer fires or terminates an employee on disability leave, this could be a form of disability discrimination because the employer denied reasonable accommodation that is needed by the employee with a disability.
What is the role of HR in implementing disability leave?
The HR team of each organization must be equipped with accurate information on the company’s leave policies, the ADA, and FMLA. In cases that the laws intersect or overlap, the HR team and the business leaders should provide the leave that gives the employee greater rights and benefits. Additionally, a company’s HR team should collaborate with managers and supervisors. Because employees typically reach out to their supervisor or manager first during times of difficulty, they should be trained on how to respond properly, legally, and with empathy.
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