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Published Wednesday, March 15, 2017

Workplace leave presents some of the most challenging employment issues. While there are many leave laws such as worker’s compensation, maternity leave, or the crime victim employment leave act, two common examples that are managed by the employer are the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).  

The FMLA applies to organizations with 50 or more employees. Eligible employees are allowed up to 12 weeks annually of unpaid leave due to birth and care of a newborn; adoption or fostering a child; the care of a spouse, child or parent with a serious health condition; or a serious health condition. There are also military leave entitlements of up to 26 weeks. The FMLA is enforced by the U.S. Department of Labor.

The ADA prohibits employment discrimination on the basis of disability and applies to employers with 15 or more
employees. New Hampshire’s Anti-Discrimination Statute also prohibits disability discrimination and applies to employers with six or more employees. These laws require employers to provide disabled employees with reasonable accommodations unless doing so would cause an undue hardship. Reasonable accommodations, or changes in the work environment or process, may include providing employees with leave from work or modifying a company’s leave policy for an employee with a disability. The ADA is enforced by the U.S. Equal Employment Opportunity Commission.

When working with employees on leave, employers often ask when and what medical information they can require, and what protections employees are entitled to under FMLA and the ADA. Here’s a primer.

Return to Job
FMLA: An employee taking FMLA leave is entitled to return to the same job, or an equivalent job with equal benefits and pay. If an employee can't return to work or is unable to perform the essential functions because of a disability, the employer is not required to make any accommodation under FMLA. The employer must then determine if the employee is protected under the ADA.

The FMLA only requires unpaid leave. Employers may require the use of accrued paid leave (PTO, vacation, sick, family leave) for some or all of the time.

ADA: An employee is entitled to return to the same job unless he or she cannot perform the essential functions of that job with or without reasonable accommodation, or the employer demonstrates holding the job open would impose undue hardship.

Accommodations include adjusting for lifting restrictions, more frequent breaks or providing a modified keyboard.

Even if the employee cannot perform the job, or the employer cannot hold it open, the employer must consider a reassignment to a vacant, equivalent position he or she is qualified to perform. If there are none, the employer must look for a vacant position at a lower level, or if none are available, an employer may be required to provide additional leave. There is no maximum time an employee can be out on ADA leave as an employer may be required to extend leave unless it would be an undue hardship.  

Generally, undue hardship means the employer would incur significant difficulty or cost in providing the accommodation given the business size and financial resources, and impact on operations.

Health Insurance Benefits
FMLA: An employer is required to maintain an employee’s existing level of insurance coverage during the FMLA leave on the same terms as if the employee had continued to work. An employer may decide to pay the employee’s premium portion so that the employee receives equivalent benefits upon return to work and require the employee to repay those premiums.

ADA: An employer is required to continue insurance coverage for an employee on leave if the employer also provides coverage for other employees on the same leave.

Medical Documentation
FMLA: Employers may request medical recertification for leave no more than every 30 days unless the condition will last more than 30 days. Then the employer must wait until the specified period has passed. Employers may request recertification every six months. An employer may seek recertification in less than 30 days when an employee seeks an extension. It is the employee’s responsibility to provide a complete medical certification.

ADA: Employers should engage with the disabled employee if he or she seeks more leave. The information must be related to the disability and requested leave. If the employee is on a fixed leave, the employer cannot require periodic medical  updates.

Fitness for Duty Upon Return
FMLA: When a serious health condition makes an employee unable to work, an employer may have a uniform policy requiring employees to present medical certification they are able to resume work.

ADA: Employers may require employees to attend a fitness-for-duty examination when it is job related and consistent with business necessity. An employer may also obtain information as to whether the employee can do the job, with or without reasonable accommodation. Employers will be found in violation of the ADA if they require employees to be 100 percent recovered or have no restrictions before they can return to work.

An alphabet soup of state and federal laws govern employee leave. Consult with counsel as this  avoids liability.

Jennifer L. Parent is chair of the Litigation Department and a director in the Employment Law Practice Group of McLane Middleton in Manchester. She can be reached at 603-628-1360 or jennifer.parent@mclane.com.   

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