An all-to-common employment law issue was raised in today’s Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.
The question to which I refer dealt with pregnancy and medical leave:
I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?
As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.
Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor’s FMLA Fact Sheet for more information.
In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination’s (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:
Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.
Consult the MCAD’s MMLA Guidelines for more information.
As the article further points out, because this particular employee has been out of work for about 8 months, FMLA and MMLA leave have long run out. I agree that this is where Chapter 151B and the American with Disabilities Act (ADA) come into play. I also agree that an employer may be required to provide additional leave as a reasonable accommodation. I disagree, however, with the following analysis:
However, the fact that you were injured on the job may be significant because employees who are injured at work are protected under the Massachusetts antidiscrimination statute, even if their injuries are not otherwise severe enough to constitute a handicap or disability.
The ADA and Chapter 151B may obligate an employer to provide additional leave as a reasonable accommodation only where the employee is deemed handicapped. To be considered handicapped, an employee must be substantially limited in a major life activity. The case law is generally clear that working constitutes a major life activity when the medical condition precludes the employee from a broad class of jobs. Thus, “employees who are injured at work are protected under the Massachusetts antidiscrimination statute, even if their injuries are not otherwise severe enough to constitute a handicap or disability ” … where the injury substantially limits an employee in a major life activity.
Lastly, don’t forget that, under the ADA and Chapter 151B, employers have a duty to participate in what is called the “interactive process,” which requires a dialogue between the employer and employee with the objective of finding a means by which a disabled employee can perform the essential functions of a job in the employer’s workplace.