Last updated Dec. 29, 2017.
Try as we might to keep healthy, many of us unfortunately will experience a serious medical issue at some point in our working lives. Such issues may even necessitate taking a leave of absence from your job, via federal or state Family and Medical Leave Act (FMLA) leave, and/or via your employer’s internal personal or disability leave policy.
In order to protect your job — as well as your legal rights — here are a few important things to keep in mind before, during, and after your medical leave to make returning to work as painless as possible.
Before Taking Medical Leave
Besides being a matter of professional courtesy, it may be legally imperative for you to give your boss sufficient “heads-up” for an upcoming leave of absence. For instance, the federal FMLA requires employees with foreseeable leave (such as for a scheduled surgery) to give their employers at least thirty (30) days advance notice. For unforeseeable leave, the Act demands that employees notify employers as soon as practicable and possible. Your company’s internal leave policies may have their own notification requirements.
Additionally, under the FMLA, your employer may require your doctor to fill out a certification form verifying that you have a serious medical condition requiring your leave of absence. Failure to complete and submit this certification in a timely fashion —usually fifteen (15) days from your employer’s request — may jeopardize your eligibility for leave. Again, your company’s internal leave policies may have their own certification requirements.
During Leave: When You Need Additional Time
If you determine that you need additional leave and/or a reasonable accommodation, ask your employer ASAP. Sometimes recovery from a serious medical condition takes longer than your physician initially estimated — perhaps even in excess of the maximum twelve (12) weeks of leave which you are allowed under the FMLA and/or your company’s internal leave policies. Other times your physician may determine that you may only return to work subject to certain restrictions, such as light-duty lifting or limits on the number of hours spent on your feet.
If you determine that you need additional leave before you’ve exhausted your FMLA or other leave, notify your employer immediately, as most likely you will be required to provide additional medical certification.
Moreover, if you determine that you need changes to your job conditions on your return to work, notify your employer and ask for such changes as soon as possible. Legally, under the Americans With Disabilities Act and the New Jersey Law Against Discrimination, your employer has a duty to “reasonably accommodate” your disabling medical condition. In fact, once you notify your employer of your disability and request a reasonable accommodation for it, your employer has a duty to engage in good-faith, interactive negotiations with you to find ways to facilitate your return to work.
What qualifies as a “reasonable accommodation”?
The answer is: it depends. Courts determine the “reasonableness” of accommodations on a case-by-case, fact-specific basis, keeping in mind the degree of hindrance to the employer and whether the requested accommodations will allow the employee to perform the essential functions of the job. Generally speaking, a few days of light-duty or seated work is considered “reasonable.” However, your boss is NOT required to essentially create a new position for you going forward. This means that if you were responsible for doing heavy custodial work before your leave, your employer does not have to create a light-duty cleaning position for you to fill indefinitely on your return. Likewise, if you were a full-time employee before taking leave, your employer is not required to create a new, part-time position for you when you come back.
Does extra leave in excess of FMLA or internal leave qualify as a “reasonable accommodation”?
In some cases, yes. Again, the answer to this question is fact-specific. A practical rule of thumb is that the shorter the excess leave requested, the better. A court is likely to consider a request for a few extra days off reasonable. However, a court will NOT approve a request for your employer to “hold your job open” while you get better.
As the New Jersey state and federal bench have stated:
“While an employer must make all reasonable accommodations to an employee returning from disability leave and allow the employee a reasonable time to recover from his injuries, the employer cannot reasonably be required to offer indefinite leave in circumstances in which an end point cannot be foreseen with any accuracy.” Mueller v. Exxon Research & Eng’g Co., 345 N.J. Super. 595, 608 (App. Div. 2001); Nusbaum v. Richard Ellis, Inc., 171 F. Supp. 2d 377, 388 (D.N.J. 2001).
A Doctor’s Note Doesn’t Count as a Request for Extra Leave
As stated above, when you ask your employer for a reasonable accommodation, your employer must launch a good-faith, interactive process with you to achieve such accommodation. However, DON’T assume that a doctor’s note is the same as asking for accommodation.
At least one 2014 New Jersey court has held that a doctor’s note extending an employee’s return-to-work date did NOT qualify as a request for a reasonable accommodation. Specifically, in Boles v. Wal-Mart Stores, Inc., the worker in question sought additional leave beyond what he originally requested. Instead of contacting his boss and expressly asking for more time off, he simply sent in notes from his physician stating he wasn’t fit to return to work until a later date. The court held that, although these notes notified the employer the worker was still injured, they “did not make any explicit or implicit request for an accommodation” and did not make “an arguable request for leave to be extended” — as such, the employer’s duty to engage in the interactive accommodation process was never triggered. Boles v. Wal-Mart Stores, Inc., 214 WL 1266216 (D.N.J).
Was the Boles’ court hyper-literal in its approach to requesting accommodation? Certainly. But as a practical matter, and to safeguard your legal rights, better to submit your accommodation requests to your employer formally and in writing.
Communicate and Document
The caselaw regarding medical leave and reasonable accommodation is rife with instances of failed communication between workers and employers. Workers assume their boss is apprised of their disabled condition when they fail to return to work. Employers, not having heard anything from the worker, assume absenteeism and initiate termination proceedings.
In our own experience, miscommunication regarding leave is a particular problem for employees of large companies that maintain centralized, geographically separate HR departments. HR sometimes fails to process leave requests and notify management in a timely fashion; as a result, management sometimes concludes employees are insubordinate and have simply quit work.
Consequently, it is of utmost importance that you communicate with both your direct manager and your HR representative during all stages of your leave. While illness can wreak havoc with your personal schedule, make it a priority to keep both management and HR informed of any changes in your need for leave or your working conditions on return — as soon as possible, and in writing.
Going Back to Work After Medical Leave
It is a violation of the FMLA for an employer to retaliate against you for taking FMLA leave. Likewise, the New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against you on the basis of your disability. Further, the Boles case, mentioned above, held that requesting and taking medical leave is protected activity under the NJLAD and subject to the law’s anti-retaliation provisions.
As such, when returning to work after medical leave, be aware of any substantive negative changes to the terms and conditions of your employment that may indicate retaliation. These include:
- disciplinary write-ups or notices created while you were on leave, for conduct that supposedly occurred before leave;
- your first negative performance evaluations, especially criticism for not being “dedicated” or “committed” enough to the job;
- a demotion in job duties or cut-back in hours that was not requested.
Of course, any worker returning to the job after medical leave may find a few unwelcome surprises — say, a switch in seating or missing out on a computer upgrade. But if you encounter any developments that threaten your job security, it may be time to consult with an attorney regarding potential retaliation.
If you have any questions regarding FMLA leave, reasonable accommodations, or leave-related retaliation, contact our offices online or call 609-243-0300 today for a free consultation.