In addition to the FMLA and FMLR, various other state and federal statutes provide employees with rights to leaves of absence. This section provides an outline of what those other statutes require of employers and how they interact with the FMLA/FMLR.

A. The Duty of Reasonable Accommodation Under the ADA & MHRA

The Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA) place a duty of reasonable accommodation upon employers. An employee who is a “qualified individual with a disability” has a right to reasonable accommodations that are necessary to enable him or her to perform the essential functions of his or her position.

A leave of absence is not automatically a reasonable accommodation. The leave of absence must be reasonably calculated to enable the employee to return to work and possibly with the addition of other reasonable accommodations, be able to perform the essential functions of the job. Courts have consistently held that the ADA does not acquire the granting of indefinite leaves of absence. However, if an employee can perform all essential functions while working a part-time schedule, the employer may be required to allow the employee to work part-time indefinitely.

Thus, the ADA and MHRA may require employers to provide leave to employees with disabilities even when they are not eligible for FMLA or FMLR leave. Alternately, the ADA and MHRA may require employers to provide more than 12 weeks of leave to employees with disabilities. Another possibility is that a reasonable accommodation would be to provide intermittent or part-time leave for an extended period.

Each case should be analyzed independently. Whether or not the provision of leave above and beyond that which is required by the FMLA or FMLR is a “reasonable accommodation” depends on the facts and circumstances of each individual’s impairment, position, department, prognosis, and so on.

If an employee with a disability makes a request for time off from the job and the employee makes it clear that the request for time off is related in some way to the disability, employers should treat the request as one for reasonable accommodation. The request mayor may not entitle the employee to leave under the FMLA/FMLR. Above and beyond that, however, employers are not required to grant the request for leave. The duty of reasonable accommodation requires employers and employee to engage in an informal and interactive dialogue in order to determine the appropriate accommodations. Thus, employers need not simply accede to a request for more leave from an employee with a disability. Unlike the FMLA/FMLR, which provide an automatic right to leave if the employee is eligible, the ADA and MHRA require only that the employer provide whatever reasonable accommodation is necessary to enable the employee to perform the job. If there are two such reasonable accommodations and both will enable the employee to perform the essential functions, the employer may choose which accommodation it wishes to implement.

We generally suggest a five-step process for determining what is a reasonable accommodation in any given situation involving a request for accommodation from an employee with a disability:

1. The employer identifies the essential functions of the job.

2. The employee and the employer together identify all barriers to the performance of the essential functions of the job caused by the employee’s disability.

3. The employee and the employer identify all possible solutions or ways to eliminate the barriers identified In Step 2.

4. The employer determines which possible solutions are reasonable accommodations.

5. The employer selects and implements one or more of the identified reasonable accommodations.

Leave provided as a reasonable accommodation under the ADA or MHRA generally may be unpaid leave, although it may coincide with benefits such as STD, LTD, workers’ compensation benefits, and so on.

B. Workers’ Compensation and the Absent Worker.

Maine’s Workers’ Compensation Act (WCA) provides for wage loss benefits to employees when they are not “able to work” due to workplace injuries. This obligation exists even if an employee is terminated for cause. However, if an employee unreasonably quits a job or turns down an offer of reasonable employment the employee will likely be held to have forfeited all wage loss benefits.

Workers’ compensation is not due until the worker has missed 7 days of work. In addition, the employer has the right to direct the employee’s medical care for the first 10 days of treatment. A health care provider should be selected who is accessible and who is familiar with the employer’s workplace and light duty job opportunities and policies. By using these tools, a vast majority of claims that, before the 1993 reforms would have resulted in lost time, are now “nipped in the bud” and processed without litigation or controversy or even ill will.

In order to keep workers at work, many employers have “light-duty” programs for employees who have suffered workplace injuries. Some employers go beyond what would be a “reasonable accommodation” under the ADA or WCA, although the most extreme examples of “make work” should generally be avoided.

As a baseline, however, like the ADA, the WCA requires that the employer effect reasonable accommodations to return the injured worker to the work force. Under

Section 218 of the WCA, this obligation has a durational limit: 3 years from the date of injury for an employer with over 200 employees and 1 year for smaller employers. The employer must first reinstate the worker to the original job, providing a reasonable accommodation if needed. If that job does not exist -and the employer need not keep it open then the employer must reinstate the worker to another position that is available and suitable. The employer need not create work under the WCA. Interestingly, the sanction for failure to accommodate is that the employer is disqualified from exercising any rights it may have to reduce or terminate benefits. Thus, if no benefits are being paid, the remedy is meaningless.

The WCA’s prohibitions against discrimination are worth noting due to the large number of cases litigated in this arena. The prohibition against discrimination for having asserted a workers’ compensation claim is now found at 39-A M.R.S.A. §353:

An employee may not be discriminated against by any employer in any way for testifying or asserting any claim under this Act. Any employee who is so discriminated against may file a petition alleging a violation of this section. * * *. If the employee prevails at this hearing, the hearing officer may award the employee reinstatement to the employee’s previous job, payment of back wages, re-establishment of employee benefits and reasonable attorney’s fees.

This Section applies only to an employer against whom the employee has testified or asserted a claim under this Act. Discrimination by an employer who is not the same employer against whom the employee has testified or asserted a claim under this Act is governed by Title 5, Section 4572, subsection 1, paragraph A.”

The Law Court distilled this test into one of whether a decision to terminate “was rooted substantially or significantly in the employee’s exercise of his rights under the Workers’ Compensation Act.” Delano v. City of South Portland 405 A.2d 222 (Me. 1979); Lindsey v. Great Northern Paper Co., 532 A.2d 151 (Me. 1987).

These claims are increasingly prevalent today. One reason is that Section 353 still provides for attorney’s fees while such fees can no longer be recovered in ordinary claims for indemnity or other benefits except as a percentage under Section 325. Thus, in practical terms, a worker who is partially disabled and has been terminated may be more likely to obtain legal representation than one who is merely partially disabled but not terminated. Another reason is that these claims are excluded from the standard workers, compensation policy and so all damages and defense costs are borne by the employer. Often a terminated employee will join the employer in a claim for indemnity or related benefits in the hope that the employer will sweeten the settlement pot instead of having to defend the case through formal hearing.

Some employees, however, cannot be returned to work. Before deciding to terminate such an employee, an employer should understand that if the employee’s whole body permanent impairment exceeds 11.8% and if the partially disabled worker is unable to obtain employment elsewhere, the insurer may in theory be responsible for lifetime benefits instead of the usual 5 year limit that applies. Finally, employers should have a policy that governs the absent worker, such as termination after 6 months of absence, although the employer should understand that in some cases the policy should be modified as an accommodation.

C. Gender Discrimination (Title VII and the Pregnancy Discrimination Act).

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964, intended to make clear that the prohibition in Title VII against discrimination on the basis of sex includes discrimination “because of or on the basis of pregnancy, child birth or related medical conditions.” 42 U.S.C. § 2000e(k). The statute does not create any independent right to leave of absence or fringe benefits for pregnant women: instead, it requires an employer to treat women temporarily disabled because of pregnancy or related medical conditions the same as it would treat any other employee subject to a temporary disability. This may include leaves of absence, job modifications, or other accommodations, If other employees who are temporarily disabled may take leave with pay or with fringe benefits, women who are temporarily disabled by pregnancy or related conditions must be afforded the same opportunities. Conversely, an employer may not require an employee to take leave if she is physically able to continue working.

D. Collective Bargaining Agreements.

The employee rights established by the FMLA supercede provisions of any collective bargaining agreement (CBA) that contradict those rights. For example, the FMLA expressly provides that “a provision of a CBA that provides for reinstatement to a position that is not equivalent because of a seniority (e.g., provides lesser pay) is superceded by FMLA.”

If the CBA (or for that matter, any employer plan) provides rights to leave than the FMLA does, the FMLA does not require the extension of FMLA rights to that period of leave. For example, if a CBA calls for 16 weeks of leave, the last four weeks of leave need not include health benefits or the right to reinstatement to the same or an equivalent position unless the CBA provides for such benefits. Note, however, that it is very important to communicate to the employee when notice is provided regarding any changes that occur after the leave converts from FMLA-covered to leave to discretionary leave.

E. Employee Benefits (COBRA & ERISA)

The taking of FMLA or FMLR leave is not a “qualifying event” under COBRA. which would trigger the notice requirements of that statute. Provided that the employer is not prepared to continue medical benefits during any additional leave provided, an employee’s failure to return to work after an FMLA leave will most likely be a qualifying event under COBRA. At that point in time, the employer must send the employee the required notification. A lapse in payments on the employee’s part during an FMLA leave will also be deemed a qualifying event in most cases.

F. Military Leave (USERRA & Maine’s Military Leave Law)

Federal Law

Under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 {USERRA), no employer (defined as any person or entity that pays wages or has control of employment opportunities) may discriminate against an employee because of that employee’s membership or participation in federal or state military forces. An employee may take a military leave for active duty, reserve duty, or National Guard duty. In general, an employee who takes a military leave of up to five years must be reinstated to his or her old job or a job of similar seniority, status, pay, and benefits. There are important exceptions to the five year limit, including initial enlistment’s that last longer than five years, periodic training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency.

Under USERRA, employers must restore returning service members to the jobs that they would have attained had they not been absent for military service. This rule — known as the “escalator principle” –pertained under the previous military leave statute as well. One important limitation to the escalator principle is that the returning employee must be qualified to perform the duties of the position to which he or she is entitled. If qualified, then the service member must be placed in the position he or she would have attained, or a position with like seniority, status, and pay. If not qualified, the employee is entitled to the position in which he or she was employed on the date of the commencement of the military service, or to a position of like seniority, status and pay.

If a returning employee has a disability incurred or aggravated during military service, and that disability renders the employee unqualified, even with reasonable accommodations, the employer has certain special obligations. The employer must attempt to place the disabled employee in any other position which is equivalent in seniority, status, and pay, and for which the disabled employee is qualified, with reasonable accommodations if necessary .If such a placement is not possible, then the employer should place the disabled employee in the nearest approximation in terms of seniority, status, and pay. Additionally, service members convalescing from injuries received during service may have up to two years to return to work.

USERRA offers a great deal of protection in terms of employee rights and benefits. While the employee on military leave is not entitled to receive more benefits than if he or she had maintained continuous employment, the list of entitlements is long:

–the returning employee is entitled to the seniority (and its attendant benefits) that he or she would have accrued if employed continuously;
–the returning employee who served for over thirty days is entitled to coverage under the employer’s health plan for eighteen months, to be paid for by the employee in a COBRA-like schedule; those who serve for 30 days or less are entitled to a continuation of a health coverage as if there had no interruption of employment;
–the returning employee is entitled to maintain his or her accrual of benefits under any pension plan; and
–the returning employee may not be discharged, except for cause, within one year if the service period was over 180 days; if the service period was between 30 and 180 days, the returning employee may not be discharged within 180 days.

Maine Law

Maine law protects members of any reserve military forces, including the state
Military forces and the reserves of the United States Armed Forces, from suffering any harm as employees as the result of their military obligations. Although the law is in most cases superfluous, because USERRA protects employees whom serve in all bona fide federal or state military forces; there may be times when the law do not overlap one hundred percent.

Note that employers may request confirmation from the Adjutant General, Camp
Keyes, Augusta, for members of any state military forces or from any applicable reserve component headquarters, of satisfactory completion of an employee’s military duties upon return to civilian employment or immediately thereafter.

Employees who are still qualified to perform the duties of their position must be reinstated without loss of pay, seniority, benefits, status, and any other incidences of advantages of employment as if they had remained continuously employed. Note that as with USERRA, the state law does not provide for mere reinstatement to the same position, but rather, it implements the escalator principle.

Under state law, a leave of absence for military training is not allowed to affect the employee’s right to receive normal vacation, sick leave, bonus, advancement and other advantages of employment that are normally provided to individuals in the employee’s particular position.