Medical Leave Of Absence & Job Protection
Is My Job Protected While I am on Leave of Absence Due to My Own Medical Condition?
Because our firm represents a lot of employees who are ordered off work due to an accident or illness, we get this question all the time. Unfortunately, the answer is not a simple yes or no. The answer depends on the size of the employer, the length of the leave of absence, and several other factors.
The Family Medical Leave Act
Under the Family Medical Leave Act (FMLA), employers with 50 or more employees are required to provide eligible employees with up to twelve (12) weeks of leave for their own serious health condition(s). Therefore, if you are injured on the job and your doctor takes you off work, the employer will likely designate your first 12 weeks of leave as FMLA time – even if you are also receiving worker’s compensation benefits, sick leave, or short-term disability benefits.
The FMLA runs concurrently. It guarantees that your job will be protected while you are off work, so long as you return within 12 weeks. Upon your return, you must be placed in the same job you left, or a comparable position.
If A Doctor Won’t Clear A Return To Work After 12 Weeks
So, what if your doctor believes you need to be off work for longer than 12 weeks? At this point, the question gets trickier.
First, read your employer’s leave of absence policy. Some employers will terminate an employee who has been off work longer than twelve (12) weeks, most allow up to six (6) months of leave and some permit up to twelve (12) months of medical leave. Employers argue that they cannot allow an indefinite period of leave because they need to get the work done. If you are not able to work, it hurts their business.
Once you know what the policy is, follow the steps necessary to request and obtain additional leave time. Likely, you will be required to fill out an application and provide medical documentation to support your need for leave. You may need to work with a third-party leave administrator. You must jump through the hoops to preserve your job. If the employer does not provide a form, send an email. Make sure the request is in writing.
The Americans with Disabilities Act.
The Americans with Disabilities Act (ADA) requires employers to provide disabled employees with reasonable accommodations that allow them to perform the essential functions of their position. Although you may not think of yourself as disabled, if you are suffering from a lingering physical or mental impairment, you may qualify for coverage under the ADA. An extended leave of absence can be a reasonable accommodation. When requesting a leave of absence, it may help to invoke the ADA by stating that you “are requesting leave as an accommodation under the ADA.”
Employers are permitted to suggest other accommodations in lieu of leave of absence, for example, light duty or a reduced work schedule. Let’s say you are suffering from a chronic shoulder injury that impairs your ability to raise your arm above your shoulder or lift anything heavier than ten pounds. If the employer believes they have work that fits within those restrictions, they may offer it as an alternative accommodation. In that case, you would need to return to work because if you turn down the offer, the employer could be relieved of their legal obligation to retain you as an employee.
Filing For Workers Compensation During A Medical Leave
Although Ohio law forbids employers from terminating an employee in retaliation for filing a worker’s compensation claim, there is nothing in Ohio law that prohibits the employer from terminating an employee who can no longer perform the duties of their position. Don’t assume that because you are on leave due to a work-related condition you are protected. An employer can still terminate you if they comply with the FMLA and ADA.
Three Important Medical Leave Of Absence Tips
Tip #1: Communicate With Your Employer
The biggest mistake that employees make is not communicating with the employer about their status and their need for leave. You must keep the employer informed about how long you will be off work and even more importantly, when your doctor expects that you will be able to return to work. Always, urge your doctor to provide an estimated return date because the ADA does not require employers to grant indefinite leave. Make sure you communicate in writing and that you retain copies of everything you provide. Also, DO NOT ignore letters and emails from the employer inquiring about your status.
Tip #2: Know Your Right To Pursue Disability Separation
Public Employees, such as those who work for State or County agencies, should also be aware that employers have the right to pursue disability separation. If you are unable to perform the functions of your position the employer may notify you that they are pursuing involuntary disability separation and/or they may offer you the opportunity to take a voluntary disability separation. The law requires them to obtain medical evidence to support a disability separation and you are entitled to a hearing. If you receive such a notice, it is important to talk to your union and/or obtain counsel. Generally, employees who are disability separated have a right to reinstatement for up to two years.
Tip #3: Consider Legal Consultation
Finally, if you find yourself at odds with your employer over your need for a leave of absence, do not hesitate to speak with an attorney here at Agee Clymer. We ONLY represent employees. Our job is to protect your interests.
Review Your Situation With Agee Clymer Attorneys
Having a trusted attorney at your side can make dealing with cases involving job security and medical leave of absence more bearable. After handling thousands of cases like these, Agee Clymer has the answers to your questions and provides the attorney consultation in Ohio that you need. Call us at (614) 221-3318 or contact us for a free case review.