MASSACHUSETTS EMPLOYMENT LAWYER • MA BUSINESS LAWYER • BUSINESS LITIGATION MASSACHUSETTS
 

What Are an  Employer’s Duties Under the Family Medical Leave Act (FMLA) , the Americans with Disability Act, (ADA),  Federal discrimination laws, (Title VII) and the Massachusetts Maternity Leave Act (MMLA)?

Perhaps the single biggest FMLA mistake businesses make is the idea that once employees have exhausted their twelve weeks of FMLA leave that the employees are not entitled to additional leave.  It is often thought that they can be terminated if they cannot return to work immediately. However, even if an employee’s leave is no longer covered by the FMLA (or was not covered in the first place), other protections may apply, including those created by the  ADA.

Definition of Covered Employers Under FMLA

Private Employers

  • Employers in the private sector engaging in commerce or within an industry or activity affecting commerce. In the Internet age, this covers most employers, most
  • Have 50 or more employees within a 75 mile radius each working day during at least 20 calendar weeks or more in the current or preceding calendar year.

Public Entities

Governmental entities are covered without regard to the number of employees.

Private Businesses- Requirements for FMLA Employee Coverage – Tests – Size Matters – 5o or more Employees, Time Worked, Same Employer

Under the law, eligible employees are allowed to take up to 12 weeks of unpaid medical leave with continued medical benefits and restoration of their original position upon return to work. The  employee is eligible under FMLA when they come back to work:

  •  worked for the same employer for the previous 12 months.
  •  at least 1250 hours in the previous 12 months.
  • Are employed by a “covered” employer, private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce.

ADA LEAVE COVERS SITUATIONS WHEN THE FMLA DOES NOT APPLY

The ADA has, instead,  a qualified employee with a disability may be entitled to leave as a reasonable accommodation under the ADA even if:

  • The employer has less than 50–but at least 15–employees;
  • The employee has not worked at the company for twelve months;
  • The employee has not worked at the company for the requisite 1250 hours; or
  • The employee has already exhausted twelve weeks of FMLA leave.

The only basis for a denial of leave as a reasonable accommodation is through a showing that it would be an undue hardship to the employer.

For companies with fewer than 50 employees down to 6 employees, the requirements of the Massachusetts Maternity Leave Act (MMLA Chapter 149: Section 105D) are applicable. MMLA requires that pregnant women be allowed up to 8 weeks of unpaid leave and be restored to her previous or a similar position upon her return to employment following leave. That position must have the same status, pay, length of service credit and seniority as the position the employee held prior to the leave. If an employee’s job was changed temporarily because of her pregnancy prior to leave (e.g., her hours were reduced or her duties were changed as an accommodation) she should be restored to the same or similar position held prior to such temporary change. In August of 2010 in a 4-to-3 ruling, the Massachusetts Supreme Judicial Court said the 1972 law guarantees full-time employees eight weeks off to give birth or to adopt a child, after which they are entitled to return to the same job or a comparable one. Beyond that, however, the law does not protect them. The Court said that if an employer promised more than 8 weeks, MCAD’s guidelines were invalid in suggesting that the law provided protection and employees would be left to contractual remedies despite their lesser protections.

 

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Copyright © 2010- 2016
Lawrence B. Morse & Associates, Attorneys At Law, LLC. All Rights Reserved.

Lawrence B. Morse & Associates is located on the North Shore in Danvers, Massachusetts and specializes in business law,
employment law and litagation for business owners and employees in Essex, Middlesex, and Suffolk counties.

The materials in this advisory should not be relied upon in making decisions about your personal situation.
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