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Leaves of Absence

There are multiple federal and state laws protecting the rights of employees to take a leave of absence under certain conditions. Employees who become injured, disabled, or ill on the job may be covered by their state’s workers’ compensation laws. But two federal statutes are central to evaluating whether an employee is entitled to medical and/or disability-related leave from work, the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), and Moeller Barbaree’s Atlanta attorneys have extensive experience representing clients under both statutes.

Under the FMLA, qualified employees are entitled to 12 weeks of unpaid leave per year for specific reasons, including but not limited to the birth/adoption of a child and to care for a newborn or newly placed child, a serious health condition, to care for an immediate family member with a serious health condition, and for reasons related to an employee’s family member’s military service. To qualify for FMLA protections, an employee must 1) work for an employer that has 50 or more employees working within 75 miles of the employee’s worksite, and 2) have been employed for at least 12 months and worked at least 1,250 hours over the 12-month period just before the leave. The FMLA’s definition of a serious health condition is broader than the ADA’s definition of a disability and covers pregnancy and a wide variety of illnesses, injuries, and physical and medical conditions. FMLA leave can be taken in small increments, called intermittent leave, where the reason for FMLA leave requires multiple short-term absences from work.

The United States Department of Labor investigates potential violations of the FMLA and enforces its requirements. Employees may also pursue their FMLA rights in litigation without first filing a complaint with the Department of Labor. FMLA lawsuits typically assert two types of claims, and Moeller Barbaree’s attorneys have extensive experience with both. An employee who can prove that she was eligible for FMLA leave and denied a benefit provided under the FMLA (including but not limited to reinstatement after protected leave) may assert an FMLA interference claim. Alternatively, an employee who can prove that she suffered an adverse employment action that was related to her request for FMLA may assert an FMLA retaliation claim. The FMLA also details stringent requirements for employers to provide statutory notices and properly evaluate and record FMLA-protected absences.

FMLA protections may become particularly complicated for an employer where the employee is also protected by state worker’s compensation laws and/or has a disability within the meaning of the ADA. Many employers are unaware that they may have to modify their leave policies, particularly maximum leave policies, to provide additional leave to employees as a reasonable accommodation under the ADA. Similarly, an employee who has been out on leave may request a reasonable accommodation in order to return to work with restrictions. Whether a leave of absence and/or other accommodation requested by an employee protected under the ADA is reasonable or would cause undue hardship for an employer are evaluated on a case-by-case basis. Moeller Barbaree’s attorneys in Atlanta can assist clients with questions regarding all of these leave issues.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects military leaves of absence and provides members of the armed services reemployment rights upon return from military leave. Employees protected by USERRA must give advance notice to their employers of any military duty, unless giving such notice is impossible, unreasonable under the circumstances, or prevented by military necessity. Finally, some states’ laws also provide for a wide variety of other types of employee leaves, including protected leaves for crime victims, voting or other civic duties, domestic and sexual violence, family and pregnancy, emergency responders, school activities, and organ donation, among others. Questions regarding job protection, pay, and continuation of benefits on leave require careful consideration of applicable laws and the employer’s policies. If you need assistance with a leave of absence concern, Moeller Barbaree’s attorneys will provide a free consultation.

Free & Confidential Consultation with Our Employment Attorneys

If you have a question or need guidance about leave of absence issues, please contact the Atlanta lawyers at Moeller Barbaree at 404-692-5543, for a free, no obligation consultation or use our convenient email form.