Q: “I work full time for a local startup company with about 45 employees. I found out that I have a condition that requires me to undergo a couple of surgeries. I went to my employer and asked for time off to have the surgery. My human resources department told me that I didn’t qualify for medical leave because our company is not large enough. I took off work for the surgery because I had to. After I had used my available sick days, they sent me a letter saying that I had been ‘separated from my employment for excessive absenteeism.’ They also told me that, when I was better, I could re-apply and I would be considered for any available job. I didn’t need much time off. Is this legal?”
A: Jennifer, this is a classic case of unlawful action that we often see happening more out of ignorance rather than malice. There are two laws that can apply in a situation such as this: the Family Medical Leave Act and the Americans With Disabilities Act. Both have a California equivalent, but I will use their more recognized federal acronyms.
The FMLA provides for up to 12 weeks of unpaid leave, with the right to be reinstated to the same or similar position with the same salary and benefits. During the time that you are out on leave, your employer must maintain your health coverage. Under the ADA, an employer must provide an employee with a disability a reasonable accommodation so long as it does not constitute an undue hardship for the employer.
Under both laws, there is an analysis undertaken to see if the employee is qualified to receive legal protection. Under the FMLA, people can take time off for their own serious health conditions or to care for a family member. Under the ADA, people can qualify if they have a disability, i.e., they are limited in one or more major life activities, but, with a reasonable accommodation, they can accomplish the essential functions of their job. An illness can qualify as a serious health condition as well as a disability.
One major distinction between the two laws is the size of the enterprise’s workforce. Employee ADA rights apply to companies with five or more employees. Rights under the FMLA accrue only in enterprises with 50 or more employees. Therefore, if you work in a company with 50 or more employees, you may have the right to the benefits under both laws.
In your case, it appears that because of your employer’s size, having fewer than 50 employees, you would not be covered by the FMLA. However, since you work for an employer with more than five employees, you are eligible for coverage under the ADA and, therefore, you may be entitled to a reasonable accommodation.
No particular request form is required when asking for an accommodation. An employer’s obligation to accommodate arises when the employer becomes aware of the disability and physical limitation. This duty arises even if the employee has not requested any accommodation.
An employer must provide an accommodation unless to do so would create an undue business hardship. The courts have held that holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.
As part of the reasonable accommodations process, the employer and employee must engage in a good-faith interactive process wherein they discuss what accommodations the employee or a doctor think may allow the employee to maintain employment. In this case, it appears that your employer’s HR department may have failed to understand your rights to a finite leave under the ADA. I suggest that you approach them, show them this article, and ask them to reinstate you as it does appear that your rights to a reasonable accommodation have been denied. If they continue to deny your rights, then find a good trial lawyer to assist you in securing reinstatement and damage remedies.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to email@example.com.