Employee Illness and Disability: Federal and Massachusetts FMLA Law

Employee Illness and Disability

This can be very difficult for both employees and employers. The employee is struggling with the effects of Illness or disability. At the same time, employers may face an undue hardship trying to run their business without a key employee.

Federal laws including the family and medical leave act ("FMLA") require job protected leave for certain employees. This leave applies to time needed for the employee's serious health condition, helping an immediate family member with a serious health condition, or the birth or adoption of a child. Massachusetts has recently passed a state family and medical leave law. That law will not be fully in effect until 2021.

Federal and state laws also protect people with disabilities from employment discrimination and discrimination in places of public accommodation. These laws apply where the employee has actual long term disabilities. They also apply to "perceived disability." In other words, if an individual is fired because the employer incorrectly believes they have a disability, that could be a wrongful termination.

Employees are also protected under Massachusetts state law for taking time of of work for short term health issues.

What is a Disability?

The Americans with Disabilities Act ("ADA") protects individuals with disabilities from discrimination. Qualified individuals must have a physical or mental impairment that substantially limits one or more major life activities. In order to be "substantially limiting" under the ADA, the impairment must be either permanent or long term. This means that an injury or illness, however debilitating, will likely not be considered a disability for discrimination purposes if it is short term in nature.

If you have an illness or injury that is not permanent or long term, you may have rights under the FMLA or the Massachusetts Earned Sick Time Law. You will not, however, be protected by the ADA.

Newly posted: Advice for Massachusetts Employers in Managing the Coronavirus Emergency

Disability Discrimination and Reasonable Accommodations

Disability is a “protected class” under both state and federal anti-discrimination laws. The law requires employers to make “reasonable accommodations” for an employee with a disability, if that employee can perform his or her essential job functions with an accommodation.

If you are able to perform the essential functions of your job, you cannot be fired because you have a disability. You also can't be fired because your employer believes you have a disabling condition. This is known as perceived disability discrimination. We have seen this occur with people who have diabetes, or are HIV positive or have a mental health condition.

Addressing disability in a job application. Sometimes employers will ask before making a job offer if you have a disability. They are not allowed to refuse to hire you because of a disability. But if you are going to need accommodations for your disability, your employer needs to be informed. You are not required to answer this question in an application, and you may be wise to wait until you get a job offer to discuss accommodations with your employer.

See frequently asked questions about disability discrimination.

The Federal Family and Medical Leave Act ("FMLA")

The Family and Medical Leave Act (FMLA) requires certain employers to provide up to 12 weeks of job protected leave. This right to family leave applies to an employee with a serious health condition or an employee who has to take care of a family member with a serious health condition. It also applies to the birth or adoption of a child.

What employers are covered: Any employer with 50 or more employees in a 75 mile radius is covered by the FMLA.

What employees are covered: Employees are covered by the FMLA if they have worked for the employer for one year and have worked at least 1250 hours over the past 12 months.

Employers are not required to pay the employee during an FMLA leave. Sometimes the leave is covered under a short term disability insurance policy. In many cases, though, the employee will have to use sick time and vacation time and may not be paid for the entire leave.

Intermittent FMLA leave: Eligible employees can take intermittent leave. You may take certain days or weeks off during the year to attend to a serious medical condition, or to help an immediate family member do the same. The employer should track this as FMLA time, and you should be able to use this time so long as you have not taken a total of more than 12 weeks.

Some reasons you may not be able to take FMLA leave:

Your employer has fewer than 50 employees.
You have not worked enough hours when you need leave
The reason you need leave is not considered a "serious health condition."
You have already used the maximum amount of leave time under the FMLA.

Massachusetts FMLA Law

Beginning in 2021, Massachusetts employees will be allowed to take up to 20 weeks of job protected paid family leave to take care of their own serious health condition. Like the federal FMLA, they may take up to 12 weeks to care for a family member with a serious health condition or a child after birth or adoption. Unlike the federal FMLA, this leave will be paid. Payment is calculated as a percentage of the employee’s regular pay, but capped at a maximum of $850 per week.

Payment for Massachusetts family and medical leave will not come directly from the employer. Instead, beginning in 2019 employees will have deductions from their paychecks to that will go to the family and medical leave fund. Employers with 25 or more employees will have to contribute toward this payment. Smaller employers may contribute if they want, but do not have to.

The Massachusetts Earned Sick Time Law

Massachusetts law now protects your right to time off for short term illness or routine medical appointments. The Earned Sick Time Law went into effect in July 2015. it requires all employees to accrue sick time, even part time and temporary employees.

If an employer has 11 or more employees, the sick time must be paid. Unlike other laws, yo do not need to have 11 full time employees. If you have 11 people on your payroll, part time or full time, the sick time must be paid. Smaller employers do not need to pay, but do need to allow the time off.

Sick time is accrued at one hour for every 30 hours worked. An employee will earn the maximum 40 hours after working 1,200 hours. This is roughly 30 weeks for a full time employee.

This time can be used for employee illness. It can also be used to attend routine medical appointments, care for a sick child or family member, or take a child or family member to medical appointments.

An employer can require a doctor's note after two consecutive sick days. An employer cannot fire or discipline you for using your earned sick time.

You can read more about the earned sick time law here. Here are the important things to remember:

Taking time to attend to routine health care for the employee or their immediate family is now a protected activity under Massachusetts law.
If you have 11 or more employees, you have to pay for earned sick time up to a maximum of 40 hours a year.
Violation of the Earned Sick Time Law is a violation of the Massachusetts Wage Act, which can mean triple damages and payment of the employee's legal fees if they win.

Workplace Injuries

If an employee is injured on the job, they are entitled to benefits through the workers compensation system. The workers compensation insurance carried by the employer should cover their medical expenses as well as 60% of their income until they can return to work.

For the most part, employers leave it to their insurance company to handle the claims process. It is important to remember, however, that you cannot retaliate against an employee for filing a workers compensation claim. If they return to work and still have some impairment from the injury, you also can't discriminate against them because of that impairment.

How We Can Help

We can help you navigate these issues and get clarity on your rights and obligations in the face of a medical condition, disability, or personal or family health care needs that have impacted you in your job. You can use the button below to schedule a call back from a member of our team, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.

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