- The Family and Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualified employees who work for qualifying employers. Employers who have 50 or more employees within a 75-mile radius must provide FMLA to qualified employees. An employee who has worked for 1,250 hours in the past 12 months may be eligible for FMLA if he has a serious or chronic illness, is experiencing the birth of a child or must care for a newborn, adopted child or foster child. FMLA also provides leave for employees who have a close family member who has a serious or chronic illness. Serious illnesses must last at least three consecutive days and require a doctor's treatment. Employees who qualify for FMLA are protected by law. Employers, according to the FMLA, may not terminate them and replace them with another permanent employee because of their illnesses or family situations.
- Employers who fail to inform their employees of their FMLA rights may not replace them with another permanent employee while they are collecting short-term disability. Short-term disability insurance is provided through private insurance companies. Employers may provide short-term disability policies through their benefits packages and sometimes require employees to pay the premiums. These policies generally have a waiting period from one to seven days and may run concurrently with FMLA protections. Because not all employers are required to provide FMLA, employees can be on short-term disability without qualifying for FMLA. Employees who do not work for FMLA-covered employees are not afforded the protections of FMLA; however, they may qualify for accommodations under the Americans with Disabilities Act (ADA), depending on the nature of their illness. For example, a diabetic employee who requires time during the workday to administer an insulin shot may be covered by the ADA.
- Employers who have employees who are on long-term disability face the dilemma of when to terminate these employees and replace them. Collective bargaining agreements often provide a length of time in which the employer may not terminate the employee. These time lengths vary from 12 months to 24 months to 36 months. During this waiting period the employer may use a temporary employee in the disabled employee's place, but it may not permanently replace her until the time period has expired. Employers without collective bargaining agreements can designate a similar time period in their employee handbooks. This designated disability waiting period must be a part of the organization's human resources policies. Employers must apply the waiting period in a nondiscriminatory manner to all disabled employees.
- Employers with 15 or more employees are governed by the ADA. These employers are prohibited from terminating employees based on their disabilities and are required to provide them with reasonable accommodation. Employees who are covered by the ADA may be terminated based on performance issues unrelated to their disabilities; however, employers should consult an attorney in these matters to avoid legal liability. According to the ADA, a disability is defined as an impairment that interferes with one or more major life activities. This is a complex law requiring employers to provide reasonable accommodation to employees with defined disabilities. The law does not list disabilities; rather, it defines major life activities as things such as breathing, walking, seeing and hearing. Employers are also prohibited from discriminating against disabled employees in the hiring process.
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