Employee Illness and Disability: Federal and Massachusetts FMLA Law

What are the Rules About Illness and Disability in Employment?
This can be one of the most difficult areas to navigate for both employees and employers.   Illness and disability present obvious and often significant challenges to the individual employee, but can also create challenges for the employer, and the rules are not always straightforward.  For example, the federal laws requiring job protected unpaid leave for employees only apply to companies of a certain size and employees who have worked a certain number of hours.  Massachusetts state law protections for using sick time for routine health care or illness applies to all employees in Massachusetts.  To further confuse matters, there is a new Massachusetts FMLA law which covers many more employers and employed individuals than the federal law, but it is not yet in full effect.  Finally, the state and federal laws that protect you from discrimination based on disability or perceived disability may protect you even if you are not eligible for job-protected unpaid leave.

Below is a quick guide to four of the rules that are most important to understand: (i) the laws against discrimination based on disability; (ii) the related laws against discrimination based on perceived disability; (iii) the requirements of the federal Family Medical Leave Act (“FMLA”); and (iv) the requirements of the Massachusetts Earned Sick Time Law.​
Illness vs. Disability
For purposes of disability discrimination under the Americans with Disabilities Act ("ADA"), an employee must have "a physical or mental impairment that substantially limits one or more of the major life activities of such individual."  What does that mean? Courts have determined that in order to be "substantially limiting" under the ADA, the impairment must be either permanent or long term.  What this means is that an injury or illness, however debilitating, will likely not be considered a disability for discrimination purposes if it is short term in nature (but you may still meet the definition of a short term disability for purposes of short term disability insurance benefits).
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With respect to illness and injuries that are not permanent or long term, the protections for employees arise not under the ADA but under the Family and Medical Leave Act ("FMLA") and, in Massachusetts, under the Earned Sick Time Law as well as the new Massachusetts FMLA law that is scheduled to take effect over the next few years.

Employment Disability Laws

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.  What is a reasonable accommodation is very fact-specific, and depends on the nature and needs of the business as well as the nature and extent of the disability.  There are some disabilities that simply cannot be accommodated in specific jobs- for example, at least at the moment it is unlikely that there is a way to enable a blind person to drive a truck, or a person with a severe back condition to do a job that requires heavy lifting.  At the same time, it is sometimes considered reasonable and not overly burdensome to place that employee in another available position for which he or she is qualified that can be accommodated.  Very common accommodations include the purchase of special chairs for desk workers with back problems, assistive technologies for employees with vision or hearing problems, or adjustments in work schedules. 

If you are having difficulty at work due to a disability, it is important to remember that you need to make a request for an accommodation, especially if your employer is unaware of your condition.  Though your employer is required to engage in a good faith conversation with you about reasonable accommodations, and help you identify what would help you perform the essential functions of your job, it is a good idea to talk it through with your doctor or health care provider ahead of time.  The more specific you can make your request, the more likely that your employer will understand it and be able to help you get what you need. 
Perceived Disability Discrimination
What many people do not know is that the law also prohibits discrimination based on “perceived disability.”  This can be confusing- what it means in its most simplistic terms is that if an employer takes action (discipline, termination, unfavorable re-assignment) based on a belief that the employee has a disability, they may be subject to a lawsuit. 

What does this mean? Usually this starts with some actual injury or condition, which the employer or manager believes or assumes to be more limiting than it is.  For example, if you are out of work with a back injury, and on your return your employer re-assigns you to a less favorable shift or duty because they believe you are restricted in your activities.  It also comes up sometimes with chronic medical conditions, if your manager or employer does not fully understand the condition and/or has made assumptions about that condition.  We have seen this with people who have diabetes, or are HIV positive and, though the law is still evolving on this, with people who are in recovery from addiction.

Employee Illness and Family and Medical Leave

The Federal Family and Medical Leave Act ("FMLA")
Under the Family and Medical Leave Act (FMLA), if an employer has 50 or more employees and the employee has worked at least 1250 hours over the past 12 months, the FMLA requires that the employer provide job-protected leave for 12 weeks for the employee’s medical condition or that of his or her immediate family member, or for the birth or adoption of a child.  This leave does not have to be taken all at once.  An employee on intermittent FMLA leave might 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,

FMLA leave is not required to be paid, though many employers carry short term disability insurance to provide some income replacement for an employed individual during a leave period, if you qualify under the terms of the policy.

It is also unlawful to retaliate against an employee for taking FMLA leave. If you need to be out of work for more than 12 weeks in a year, your employer does not have to hold your job longer than that, but if you return to work from a leave of 12 weeks or less, your employer cannot penalize you for taking that leave.

Reasons the FMLA might not help you:
  • Your employer has fewer than 50 employees.
  • You have not worked enough hours when you need leave (a little less than a year, depending on how many hours you work each week).
  • 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.

If any of the above situations apply to you, you may still be entitled to protection under the Massachusetts FMLA law or the Massachusetts Earned Sick Time Law (described below).
Massachusetts FMLA Law
Beginning in 2021, Massachusetts employees will be allowed to take up to 20 weeks of job protected leave to take care of their own serious health condition, up to 12 weeks to care for a family member with a serious health condition or a child during the first 12 months after birth or adoption, and up to 26 weeks to care for a family member who is a covered servicemember.  Unlike the federal FMLA, this leave will be paid, at a rate that is calculated as a percentage of the employee’s regular pay, but capped at a maximum of $850 per week.
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This amount is not paid by the employer directly, but instead is intended to operate much like unemployment: employers will be required to contribute to a family and medical leave fund, which will be administered by a state agency that determines eligibility and benefits.

For employees, you will have to wait a while to be able to enjoy the benefits of the Massachusetts FMLA law, as it does not come fully into effect until 2021.  For employers, you will have to start thinking about the implications for your business sooner than that.  Contributions to the fund will begin in 2019.  Also, many smaller businesses have never really needed to consider how to deal with extended job-protected leave in their business, because they are too small to be covered by the federal FMLA.  It is not too soon to start considering how you will revise your employment policies to reflect the new rules, and how you will address gaps in service if any of your employees need to take advantage of the leave.
The Massachusetts Sick Time Law
For shorter term illness or even routine medical appointments for yourself or your immediate family members, Massachusetts employees have additional protection under a relatively new law (July, 2015) called the Earned Sick Time Law.   Under the law, employers are required to provide earned sick time for their employees, including part time and temporary employees.  Unlike many other employment laws, including the FMLA, this really means all employers- big or small- and counts all employees-part time, full time or temporary.

All employees must be given one hour of sick time for every 30 hours worked, up to a maximum of 40 hours.  Only employers with 11 or more employees must pay for the sick time, but all employers must allow the time to be taken.  Sick time now includes time needed to attend routine medical appointments, take a child or immediate family member to routine medical appointments, or take care of a sick child or immediate family member.

Finally, all employers, no matter what their size, are subject to the anti-retaliation provisions of the Massachusetts Sick Time Law.  That means that if you use your earned sick time to take a child to a doctor's appointment, stay home with a sick child, or stay home yourself, you cannot be fired or penalized because you took that time.

For many larger employers, this law does not make a significant change, other than the need to update sick time policies to make sure that they are in compliance with the law.  For smaller businesses, however, who may not be accustomed to providing sick time, this has been a big change.  It is also a big change for restaurants, fast food outlets, and retail employers who have workers without regular shifts.  The sick time must still be tracked- and paid, if there are 11 or more employees- even if prior practice was that an employee was not paid when he or she called out sick.

What 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, even if your employees do not work regular hours.
  • 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.
How slnlaw 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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