By: Teresa Ayling
DISCLAIMER: These suggestions are not meant as legal advice. They are general in nature and may not be helpful in your case, and could be counterproductive in some situations. It is best to seek legal advice for your particular situation. This memorandum anticipates some questions that might arise when an employee needs time off or accommodations due to a medical condition.
I have a serious and ongoing health problem that is affecting my work performance. What should I do?
Talk with your doctor about your work-related issue to get advice on whether anything further can be done from a medical perspective to increase your ability to function at work. Medical professionals may want to do further testing to pinpoint the problem and can sometimes make adjustments to medication and treatment, or suggest occupational or physical therapy, assistive devices and other strategies. It may help to bring to your medical appointment a copy of your job description, if there is one, or just describe what your job entails and the challenges you are experiencing.
You might benefit from accommodations at your workplace. Accommodations can include any number of things, but typical examples include time off for medical care or to recuperate, adaptive equipment, lifting or other physical restrictions, a quieter workspace, or special software.
My doctor suggested that I need to take some time off or at least reduce my hours. Which is better? How will that affect me?
If you need time off from work to recuperate, or need to work fewer hours on a permanent or temporary basis, you should do some homework before you ask for accommodations. What you ask for could affect your benefits long term.
Get a copy of your employer’s policies and procedures for reporting needed time off for medical reasons, medical leaves, FMLA benefits, Short Term Disability (STD) and Long Term Disability (LTD) polices, and other related policies, as well as the policies relating to how many hours you need to work to qualify for medical insurance, short term disability, long term disability, and other benefits.
If you are not able to understand these policies, it can be helpful to get the advice of an attorney, who can help you maneuver through what can be a rather complex area.
Before going on intermittent leave, check your Short Term Disability and Long Term Disability Insurance Policies to see how those policies would be affected by intermittent leave. Ask for the full policy, not just the summary plan description.
For example, some policies provide for partial benefits when your hours must be reduced by a certain amount for medical reasons, and others do not provide benefits unless you are not working at all. LTD benefits likewise differ in the benefits they provide, and both policies could have different provisions, even when provided by the same insurer. These policies can be difficult to decipher, so you may want to consult an attorney who has experience interpreting disability policies. You should also be aware of any minimum hourly requirement for health insurance and other benefit plans.
If you take a leave, be sure to strictly follow your employer’s policies to the letter concerning requesting leave and calling in sick, even if they are bothersome. Not following these directives can be used as a reason for discharge. Keep your employer informed about your status and expected return to work date.
What is needed to qualify for FMLA leave?
You might qualify for full or intermittent leave under the Family and Medical Leave Act (FMLA), depending on the size of your employer and the length of your employment. FMLA leave has advantages in that it allows you to continue health benefits by paying the employee portion (rather than both the employee and employer portion of the premium), and gives you some protection on your return to work.
Unless your employer has a more generous policy (and some do) to qualify for the FMLA, you need to be employed with your employer for at least one year and have worked at least 1,250 hours during the prior year, and your employer must employ 50 or more employees within 75 miles of your worksite.
FMLA covers a wide variety of matters, including serious health conditions, birth or adoption of a child, care of a family member, qualifying military leave, military service member leave and other matters. The FMLA is administered by the U.S. Department of Labor, and further information on that program can be found at https://www.dol.gov/whd/regs/compliance/1421.htm.
The term “serious health condition” does not cover short, minor matters. The U.S. Department of Labor defines “Serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves:”
- any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
- a period of incapacity requiring absence of more than three calendar daysfrom work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
- any period of incapacity due to pregnancy, or for prenatal care; or
- any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
- a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
- any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
If possible, you must provide notice of the need for leave 30 days in advance. If a 30 day notice is not possible, and often it is not, you must provide notice of your need for FMLA leave as soon as reasonably possible. You probably will be required to have your doctor fill out a form to certify your illness. Your employer is supposed to give you at least 15 days to get the paperwork in, but do that sooner if you can.
Generally, Minnesota does not require employers to provide paid sick leave, although some cities are starting to require some employers to provide some paid sick leave.
Minnesota has a leave law that covers birth, adoption, fostering a child, (http://www.dli.mn.gov/ls/ParLeave.asp). The Minnesota leave law also allows covered employees to use employee sick leave for the care of certain family members with health problems and other matters, such as issues relating to domestic abuse and stalking. The Minnesota law covers employers with at least 21 employees, and employees who work at least half time and have been with the company for at least 12 months. For more information, on whether this law applies to your situation, see http://www.dli.mn.gov/ls/FaqWesa.asp.
What if my employer has no policies for sick leave and is too small to be covered by the FMLA?
You might still qualify for medical leave or intermittent medical leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) or the Minnesota Human Rights Act (MHRA). Minnesota law prohibits discrimination against an employee if the employer has one or more employees, but it does not require reasonable accommodations unless the employer has 15 or more employees in 20 calendar weeks of the current or preceding year.
The ADA applies to employers who have “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. 12111 (5)(A).
A reasonable accommodation could include a medical leave of absence, a reduced schedule, adaptive equipment or software and other matters as discussed above. The size and resources of the employer could be taken into account in determining whether the requested accommodation is reasonable.
The ADA does not protect employees currently using illegal drugs, but does protect people with a history of such use. An employer may prohibit use of drugs and alcohol at work, and may discipline or discharge an employee for being under the influence at work. Employees may be disciplined or discharged based on their conduct or poor performance. (Of course, if you have a contract or other requirement for just cause, that provision would still apply.) For more information about the ADA, see http://www.usccr.gov/pubs/ada/ch4.htm.
I have a chemical use disorder and my employer is asking me to do a drug test. Do I have to take a drug test?
Minnesota has a very detailed drug-testing law. If the employer follows those restrictions and procedures, it can do drug tests. The League of Minnesota Cities prepared this document for the cities it insures that explains the law in some detail. file:///C:/Users/tayling/Downloads/DrugAndAlcoholTesting%20(1).pdf. If you are employed at a job that involves driving, other laws may apply. The drug testing laws can be difficult to interpret, and you may want to consult an attorney about your specific circumstances.
My employer says if I cannot return to work full time, I cannot return at all. Is that consistent with the law?
It depends on the circumstances, and the provisions of the ADA and MHRA may offer you some protection.
My doctor suggested a certain type of adaptive equipment, but my employer wants to provide a similar, but different type. My doctor says the type my employer wants to use is okay, but not as good. Can my employer get away with providing inferior equipment?
The ADA requires “reasonable accommodations,” not the best. You might want to provide more information about the equipment your doctor suggested in an effort to convince the employer what your doctor suggests will be more cost-effective in the long run. For example, if you have voice-activated software on your home tablet or laptop, you might bring it to the office to demonstrate just how efficient it is. However, in the end, you may have to use the equipment your employer chooses.
If the equipment you want is something you could use at work and at home, and is affordable to you, you could consider purchasing it yourself and bringing it back and forth with you if that is convenient.
After I came back from FMLA and ADA leave my employer changed me to the worst shift, gave me much less desirable work, and reduced my hours. Do I have any rights?
If your employer takes adverse employment action in retaliation for your taking a leave under the ADA, MHRA or FMLA, you might have a claim for retaliation or reprisal. If, on the other hand, there was some legitimate restructuring done while you were out, the employer may be able to make some changes.
My employer is taking adverse action against me because it thinks I am disabled, even though I am not. Do I have any recourse?
It is a violation of the ADA and MHRA to discriminate against an employee because the employee is regarded as disabled.
Will any of these laws help me as I look for a new job?
An employer is not allowed to discriminate against a job applicant who is disabled or regarded as disabled. The employee, however, must be able to do the essential functions of the job with or without reasonable accommodations to qualify for the job.
Where can I go to find more information?
You can consult with an attorney, call the Equal Employment Opportunity Commission in Minneapolis or the Minnesota Department of Human Rights in St. Paul for more information about disability discrimination and reasonable accommodations or to file a Charge of Discrimination. You can call the U.S. Department of Labor for more information concerning the Family and Medical Leave Act. You also can search the internet. Here are a few places to get you started with your research:
Federal Family and Medical Leave Act
Minnesota Leave Act
Americans with Disabilities Act
Minnesota Human Rights Act