Navigating the various leave laws is one of the most difficult tasks an employer faces. When an employee requests leave, employers must ensure compliance with the Family Medical Leave Act, the Americans with Disabilities Act, and workers' compensation laws in their state.

During a recent BLR audio conference, two employment law attorneys offered tips on complying with the various laws.

Lindsey Urbina, who practices labor and employment law at the Miller Law Group in Larkspur, California, said employers should start by determining if the employee seeking leave is eligible for leave because of a "serious health condition" under the Family and Medical Leave Act (go here for information on FMLA eligibility). Since FMLA leave can run concurrently with workers' compensation leave, it is important to make this determination and designation as soon as possible to avoid having the employee return workers' compensation leave and then request an additional 12 weeks under FMLA, Urbina noted.

If the employee has a serious health condition, the employer should determine if the condition qualifies as a protected disability under the ADA, according to Urbina. She said employers sometimes are surprised to learn that they may be required to offer leave to employees as a reasonable accommodation under the ADA (go here for more information on the ADA). The law requires employers with 15 or more employees to provide reasonable accommodation for otherwise qualified individuals with disabilities, unless it would cause undue hardship.

Allen Kato, who is an attorney in the Litigation and Employment and Labor Law Groups of Fenwick & West, LLP, said that while the FMLA has a limit of 12 weeks of leave within a 12-month period, the ADA and state workers' compensation laws generally have no set cap on the amount of leave. Depending on the circumstances, intermittent leave may be required under all the applicable laws, the attorneys said.

Kato and Urbina also addressed the reinstatement rights under the leave laws. Under FMLA, when the leave ends, employers must return employees to the same job or equivalent one in pay, benefits, and other employment conditions.

In general, under workers' compensation law, employers must rehire employees only after they are released for full duty without restrictions. However, employers are barred from automatically refusing to rehire someone with a significant occupational injury that qualifies as a serious health condition under FMLA and/or an ADA-protected disability, Urbina noted. Under ADA, disabled workers usually have the right to return to work if they can carry out the essential functions of the job with or without a reasonable accommodation.

Kato noted some "traps for the unwary." He said a growing number of employers are using return-to-work programs to lower workers' compensation costs, but these programs can run into conflict with the FMLA and the ADA. Kato reminded employers that they are prohibited from refusing to let an employee return to work out of fear that the employee will re-injure himself or herself and file new workers' compensation claims.

To conclude, Urbina stressed the importance of:

• Documentation. It's important to document the type of leave an employee is taking, and if it is intermittent FMLA leave, to track the increments in which the leave is taken.
• Training. Train supervisors to recognize when an employee's absence may be covered by leave laws and to bring it to the attention of human resources.