Employees call in sick from work all the time.  More often than not they simply notify their employer that they have the flu, their child is sick, or something else.  But what happens when the employee requires a longer duration medical leave?

The Long Term Leave Problem

The Family and Medical Leave Act (“FMLA”) protects employees of larger employers, and municipal/government employers, during longer term leave to care for a serious health condition.  A serious health condition is not a cold, it is generally something much more severe, such as a chronic illness.

The FMLA has a general requirement that the employee provide the employer with a medical “certification” from his or her doctor.  This identifies the nature of the treatment that the employee is receiving, and also helps provide the employer with some idea of the leave that the employee will require (nature and duration). Under the FMLA the employee – if qualified – may take up to 12 weeks of steady protected leave, or if necessary may take what is known as intermittent leave.  Intermittent leave allows the employee to take time off on more of an as-needed basis while ensuring that the employee's job remains safe.

An employee who wishes to take FMLA leave should absolutely see his or her doctor and provide the employer with a medical certification.  This not only fulfills the employee's obligation under the FMLA, it also will earn the employee some level of protection from retaliation by the employer.

Leave for a Disability

Employees of smaller companies are not generally held to the same stringent requirements.  Instead, the New York State Human Rights Law and Americans with Disabilities Act generally require that an employee with a disability who is seeking leave as a reasonable accommodation engage in an “interactive process” with the employer.  This means generally that the employee (and vice versa) must try to work with the employer to come to some fair resolution of the employee's need for leave.

Remember, in order to qualify for this the employee must have a “disability”, although that term is generally applied in a more flexible fashion than the “serious medical condition” required by the FMLA.

If you have questions about a medical leave, or have been subjected to retaliation after requesting leave, give us a call.