Nov 13 2024
Josh Goodbaum: Hi, Amanda.
Amanda DeMatteis: Hey, Josh. I hear we have a question from a viewer today.
Goodbaum: Yes, we love those questions. Please keep them coming. Here’s the question: “I’m trying to take FMLA leave. I told my employer I want to take my leave. I think I’m qualified for it. And my employer says I cannot take an FMLA leave because it would be an undue hardship on the employer. Can they do that?”
DeMatteis: Easy answer: No.
This “undue hardship” language comes from the Americans with Disabilities Act. And as we always talk about when it comes to disabilities and medical leaves, there’s a lot of different laws that can trigger at once, and the FMLA and the ADA are two of them.
If you are a person with a disability and you request a reasonable accommodation from your employer that allows you to perform the essential functions of your job, the employer can say, “No, we can’t do that because that reasonable accommodation causes an undue hardship to the business.” Now it’s important to remember that that’s the employer’s burden. They need to actually prove that any reasonable accommodation sought is, in fact, an undue hardship on the business.
Now jump back to the FMLA. There’s no such requirement. So, if you are telling your employer you require a leave for a qualifying medical condition, and your employer is eligible under the FMLA, and you are otherwise eligible for FMLA leave, then your employer can’t say to you, “Sorry, that’s gonna cause us an undue hardship. Therefore, you cannot take the leave.”
However, Josh, there is a very, very small carve out to that that is worth mentioning, but I don’t think it’s going to impact most of our viewers in Connecticut or across the country.
Goodbaum: That’s right, Amanda. This is a very, very small exception. It is for what is called “substantial and grievous economic injury.” Now, that is an even more stringent test than “undue hardship.” It would really need to be that the employer almost couldn’t continue to exist without the employee.
Two things to keep in mind here. First, this exception only applies to key employees. That is the very top of the organization. And the second is, it’s a reason for the employer not to reinstate the employee; it is not a reason for the employer to deny the leave. And, in order to invoke this exception, the employer must give the employee notice in writing at the time the employee requests the leave.
So, what the employer can say is not, “We’re not gonna let you take the leave.” They have to let you take the leave. What they can say when you take the leave is, “Hey, we might not be able to reinstate you because what might happen while you’re out is we might need to replace you, and it would be, at that point, a substantial and grievous economic injury to our business to reinstate and get rid of the interim person who we installed in your place.”
So, that’s the exception. But as you said, it’s going to apply to very, very few people watching, and it is not a reason for an employer to deny an otherwise qualified leave under the FMLA.
DeMatteis: Remember that this only applies to the right to reinstatement for a person that has taken FMLA leave. So, if you take FMLA leave and it’s time for you to go back to work, you have a right to be reinstated into the same or substantially the same position that you held prior to your leave. This exception that Josh pointed out to us only impacts that right to reinstatement.
So, thank you so much to the viewer who asked this question. You can ask questions on our YouTube page. So if you head over there, you have questions about this video or any other that you see, leave us a question, and if it’s something that we think we can answer, we’ll absolutely do that.
Thank you so much for watching, and have a great day.
Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in Commentary
Tagged Amanda DeMatteis, FMLA, Joshua Goodbaum
