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DMEC 2016 Post Show Series: Understanding the Difference Between Unpaid Statutory Leave Laws and Reasonable Accommodation


DMEC 2016 Post Show Series - Image of Group of Individuals at Convention Center

During the pre-conference sessions of the DMEC Annual Conference, a hot topic discussed among attendees and presenters was the complexity in understanding the overlap between unpaid reasonable accommodation (ADA) and statutory leave laws. In hopes of offering clarity on the subject, below is our approach to de-mystifying this overlap.

The purpose of leave laws, such as FMLA, CFRA and other similar state leaves, is generally to provide access to unpaid job protected leave and benefits continuation, and is limited to leave as a remedy for employees needing time away from work. On the other hand, the purpose of ADA is to keep employees at work or return them through accommodations.

As long as an employee has access to statutory leave entitlements, this leave will more often than not be more beneficial than “leave as a reasonable accommodation”, as ADA leave does not address continuation of benefits throughout their leave duration. This assumes time off is required. However, being able to stay at work or return to work through accommodation is always the best option for the employee, as they avoid unpaid time away from work.

In summary, we recommend accommodating an employee as a first alternative, whether required to do so under ADA or not, as it will frequently be the most advantageous solution. If accommodation is not possible, extending the leave under the federal and state statutes will be the next best option as it almost certainly provides the most generous benefit to the employee, especially when combined with pay under sick and disability programs. As a last resort, deliver leave as a reasonable accommodation.

The overlap between a request for FMLA leave and a request for reasonable accommodation continues to be a major struggle for employers and an ongoing discussion at DMEC.

What is your take on the complexity in understanding the overlap between ADA and statutory unpaid leave laws?

Presagia provides Software as a Service (SaaS) absence management solutions to employers and Human Resources Outsourcing (HRO) providers. We monitor and manage more than 450 pieces of federal and state leave legislation in our proprietary Compliance Engine, including the FMLA and the ADA, and update the system on a continuous basis. Our software automates leave processes to increase efficiency, minimize absence, reduce cost and above all improve compliance.

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