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Your Rights Disability Leave

Clark Law Group

Outten & Golden LLP

This page provides answers to the following questions:

1. What is disability leave?

2. Which federal laws cover people with disabilities?

3. Who is entitled to leave under the law?

4. Is my employer required by law to offer disability leave?

5. Can my employer prevent me from working while I'm disabled or require me to take a certain amount of leave?

6. What happens to my job while I am on disability leave?

7. Is my employer required to pay me while I am on disability leave?

8. What happens to my benefits while I am on disability leave?

9. What do I do if I am being denied leave?

10. Who enforces the law?

11. What are the remedies available to me?

12. How can I file a complaint?

13. More Information about Disability Discrimination

1. What is disability leave?

The term “disability leave” is used to refer to a leave from work for one of a variety of reasons. It is used to refer to leave taken by a disabled employee as a reasonable accommodation under the Americans with Disabilities Act (ADA), or may refer to leave allowed under an employer's policy regarding short- or long-term disabilities. The term may be used loosely also to refer to sick leave; time off from work for health reasons, whether paid or unpaid, that is not covered under an employer's disability policy. Finally, the Family & Medical Leave Act (FMLA) permits certain employees with a “serious medical condition” to take a leave.

2. Which federal laws cover people with disabilities?

The Americans with Disabilities Act of 1990 (ADA), makes it illegal for private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. (Sections of the ADA that don't relate to employment address discrimination by governmental agencies and in public accommodations.)

The Rehabilitation Act 29 U.S.C. § 791 makes it illegal to discriminate on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in the Americans with Disabilities Act.

The Family and Medical Leave Act (FMLA) enacted in 1993, is the primary federal law protecting certain employees' right to take family or medical leave without losing their job and health insurance benefits or suffering retaliation. The purpose of the FMLA is to allow employees to balance their work and family life by taking reasonable unpaid leave for certain family and medical reasons. The FMLA guarantees an employee, male or female, the right to take up to 12 weeks of unpaid leave to recover from a serious medical condition or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse. The FMLA covers only employees who have been working for at least one year for a company with 50 or more employees.

The FMLA guarantees that eligible employees who take a leave will be given the same job when they return or another job that is equivalent in pay, benefits, and other terms and conditions. The employer is required to maintain the employee's health insurance benefits during the leave, unless the employer wouldn't have maintained those benefits even if the employee hadn't taken leave.

The ADA, the Rehabilitation Act, and the FMLA are the primary federal laws that apply to disability or medical leaves, although there are many other federal laws that make it illegal to discriminate on the basis of disability. The law in most states also prohibits discrimination on the basis of disability, and some state laws have different standards than the ADA and FMLA for determining who is covered by state disability discrimination and leave law.

While the discussion below will focus on the ADA and FMLA, you should check the law in your state and/or consult with a local attorney to see whether your state law provides additional protection.

3. Who is entitled to leave under the law?

Not all who people who have disabilities qualify for protection under the ADA. One criticism of the ADA is that many people are “too disabled” or “not disabled enough,” while relatively few people with disabilities qualify for protection under the law.

According to the ADA, an individual with a disability is a person who:

  • has a physical or mental impairment that substantially limits one or more major life activities;
  • has a record of such an impairment; or
  • is regarded as having such an impairment.

For more information, see our page on disability discrimination.

Also, not everyone is protected by the FMLA. Both you and your employer must meet certain qualifications.

Employer requirements: To be covered by the FMLA, your employer must have 50 or more employees on the payroll for 20 work weeks during the current or preceding calendar year. Only employees who work for your employer within a 75-mile radius of your worksite count toward the 50-employee total.

  • To determine whether your employer is covered, find out how many employees are on the payroll, including those on leave and working part-time.
  • If your location does not have 50 employees, find out whether your company has other employees at locations within 75 miles of where you work.

Employee requirements: To be covered by the FMLA, you must have worked for your employer for at least 12 months and for at least 1,250 hours during the last year.

  • If you worked an average of at least 25 hours for 50 weeks in the past year, you worked the required total of 1,250 hours. Only actual time worked counts. Time off for which you are paid, such as vacation, holidays and sick leave, does not count towards the required 1,250-hour total.

Although there are exceptions, most employees who meet these two conditions will qualify for leave under the federal FMLA. Your state may have different requirements for coverage under state law.

For more information, see family/medical leave.

4. Is my employer required by law to offer disability leave?

Only in certain situations. An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation for a worker with a disability. The employer is not required to provide additional paid leave, but accommodations for a disability may include leave flexibility and unpaid leave.

A leave policy that is uniformly applied to all employees does not violate the ADA just because it has a more severe effect on an individual with a disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship for the employer.

Work-related injuries must be evaluated on a case-by-case basis to determine if a worker is protected by the ADA. Only injured workers who meet the ADA's definition of an “individual with a disability” will be considered disabled under the law, regardless of whether they are eligible to receive benefits under workers' compensation or other disability laws. An employee also must continue to be “qualified” (able to perform the essential functions of a job with or without reasonable accommodation) to be protected by the ADA.

Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Also, many on-the-job injuries cause temporary impairments that heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers' compensation or other disability benefits laws may not be protected by the ADA, and thus not entitled to leave from work as a reasonable accommodation.

A disabled employee may also be eligible for unpaid leave under the Family and Medical Leave Act (FMLA). For more information, see family/medical leave.

5. Can my employer prevent me from working while I'm disabled or require me to take a certain amount of leave?

Under the ADA, an employer is allowed to refuse to hire or to prevent from working any individual who poses a “direct threat” to the health or safety of themselves or others. A direct threat means a “significant risk of substantial harm.” Employers have legitimate concerns about maintaining a safe workplace for all employees and members of the public. In some instances, employers may determine that the nature of a particular person's disability may cause an unacceptable risk of harm and therefore they may prevent that person from working or require that person to take leave until the threat of harm no longer exists.

The determination that there is a direct threat must be based on objective evidence and reasonable medical judgment regarding an individual's current ability to perform essential functions of a job. It cannot be based on unfounded fears or generalizations. An employer cannot refuse to hire you because it would result in a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

6. What happens to my job while I am on disability leave?

An employer may be required to make adjustments in leave policy as a reasonable accommodation for a worker with a disability. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave. In this situation, if your job is terminated while you are on leave, this could constitute disability discrimination, on the basis that your employer has denied you the reasonable accommodation you need.

For more information, see our page on disability discrimination.

If you are eligible for leave under the FMLA, you may take medical leave (leave to seek care for or recover from your own serious health condition) without losing your job.

Under the law, your job is protected during your leave. When you return to work, your employer must give you either the same job you had before your leave, or a position with equivalent benefits, pay, working conditions, and seniority. Your employer must continue to pay for your health insurance coverage during your leave, unless the employer would have discontinued the insurance even if you hadn't taken leave.

If you qualify for a family or medical leave, you have the right to take that leave free from harassment or discrimination. Your employer cannot interfere with your right to take leave, discriminate against you for requesting information about your rights, or discriminate against you for taking a leave.

7. Is my employer required to pay me while I am on disability leave?

Neither the ADA nor the FMLA require an employer to offer paid leave. If you take pregnancy leave, however, depending on your company's policies and accumulated leave time, you may be eligible to use sick leave, vacation leave, short- or long-term disability leave, or other leave time to maintain your salary. The fact that the FMLA does not require paid leave prevents many employees from taking FMLA leave, as they may be financially unable to take unpaid leave. Nonetheless, federal law has not been changed to provide for paid leave. California is the first state to offer paid family leave, starting in July 2004; efforts to pass similar laws in other states are likely to continue.

8. What happens to my benefits while I am on disability leave?

What happens with your benefits while you are on leave depends on whether you are eligible for FMLA leave or not. If you are not eligible for FMLA leave, your leave is subject to whatever conditions the employer imposes, unless an employment contract, collective bargaining agreement, or other legally binding agreement applies.

However, an employer covered by FMLA is required to maintain your group health insurance coverage while you are on FMLA leave, as long as the insurance was provided before the leave was taken. The insurance must be provided on the same terms as if you had continued to work instead of taking leave. If you paid for all or part of your health insurance premiums before you were on leave, you will need to make arrangements to continue payment during your leave. If your employer paid all or part of your premiums, it will need to continue payment according to the same terms. If your family members are usually covered by your health insurance policy, your employer must continue their coverage during your leave as well.

In some instances, your employer may recover premiums it paid to maintain health coverage for you if you fail to return to work from FMLA leave. However, if the reason you do not return to work is your own or your family member's serious health condition or other circumstances beyond your control (such as a spouse's job transfer), your employer cannot collect from you the health insurance premiums it paid on your behalf.

Other benefits, including cash payments you have chosen to receive instead of group health insurance coverage, need not be maintained during periods of unpaid FMLA leave.

Certain types of earned benefits, such as seniority or paid leave, need not continue to accrue during periods of unpaid FMLA leave, as long as such benefits do not accrue also for employees on other types of unpaid leave, such as disability leave or sabbaticals. For example, you cannot lose the seniority you have already accumulated when you take a FMLA leave, but the fact that you don't continue accruing seniority during the leave could cause you to lose seniority rights to other employees who have not taken leave.

For other benefits, such as elected life insurance coverage, you and your employer may make arrangements to continue benefits during periods of unpaid FMLA leave. Your employer may choose to continue such benefits to ensure that you will be eligible to be restored to the same benefits upon returning to work. At the conclusion of the FMLA leave, your employer may recover only your share of premiums it paid to maintain non-health benefits during the leave.

9. What do I do if I am being denied leave?

When you request a leave, put the request in writing, explaining the reason for leave and how long a leave you need. Keep copies of everything you send to and receive from your employer, as well as copies of doctor's notes and any other medical documentation.

If you are denied leave, you may want to file a grievance. If you are a union member, you may be able to file a formal grievance through the union. Try to get a shop steward or other union official to help you work through the grievance process. Some employers have policies for handling a dispute regarding leaves. You may be able to resolve the dispute internally with your employer. Find out what your employer's policies are by looking in your employee manual or other sources of personnel policies. If your company has a human resources department, they may be able to help.

However, even if you file a grievance with your employer, the deadlines to file in court or with an administrative agency still apply, so be sure not to miss them.

10. Who enforces the law?

For disabled employees who have been denied disability leave as a reasonable accommodation under the ADA, the Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to disability discrimination in workplaces of 15 or more employees. Most states have their own agencies that enforce state laws against discrimination (see below).

For those employees who have been denied leave in violation of their rights under the Family and Medical Leave Act (FMLA), the U.S. Department of Labor's (DOL) Employment Standards Administration, Wage and Hour Division, administers and enforces the FMLA for all private, state and local government employees, and some federal employees. Most Federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.

For more information about the DOL's enforcement of the FMLA, please contact the closest district office of the DOL's Wage and Hour Division.

11. What are the remedies available to me?

Victims of disability discrimination can recover remedies that include:

  • back pay
  • hiring
  • reasonable accommodation
  • promotion
  • reinstatement
  • front pay
  • compensatory damages (emotional pain and suffering)
  • punitive damages (damages to punish the employer)
  • other actions that will make an individual "whole" (in the condition she or he would have been but for the discrimination)

Remedies also may include payment of:

  • attorneys' fees
  • expert witness fees
  • court costs.

An employer that violates the ADA may be required to post notices to all employees addressing the violations and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer may be required also to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.

Your state law may allow for greater or different remedies than federal law (see below).

Remedies for violation of the FMLA:

If an employer is found to have violated FMLA, remedies available to the employee may include:

  • wages
  • employment benefits
  • other compensation denied or lost to the employee
  • actual monetary loss to the employee (such as the cost of providing care to a family member with a serious health condition). This is limited to 12 weeks of the employee's wages
  • interest
  • an equal amount in “liquidated damages” unless the employer can show action was taken in good faith. This is often called “double damages.”

The employee may also obtain other forms of relief, such as:

  • employment
  • reinstatement
  • promotion.

In addition to the relief described above, you may also recover from the employer:

  • reasonable attorneys' fees
  • reasonable expert witness fees
  • other costs of the legal action.

12. How can I file a complaint?

For more information on filing a complaint for disability discrimination, see How can I file a disability discrimination complaint?

For more information on filing a complaint for denial of FMLA leave, see How can I file an FMLA complaint?

13. More Information about Disability Discrimination

Equal Employment Opportunity Commission (EEOC)
Facts About the Americans with Disabilities Act
The ADA: Your Employment Rights as an Individual With a Disability
EEOC Statistics on Charges of Disability Discrimination

Department of Justice, Civil Rights Division
Americans with Disabilities Act: Questions and Answers - Employment

Nolo
Getting Hired With a Disability

This page was updated on December 17, 2008

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