Medical & Workplace Leave Discrimination

Under Massachusetts and federal law, employees are entitled to various types of workplace leave. As summarized in the following chart, each workplace leave statute has its own trigger and employee threshold requirements. The hypotheticals below help illustrate how these statutes apply and interact in particular workplace situations.

1. For the past several years, Jane has been a software engineer at SpaceBook, the largest social media site in the world based in Cambridge. She’s an avid soccer player and suffers a broken leg in a tournament over the weekend. It’s a serious fracture that will require surgery and a number of weeks of physical therapy, but her doctors expect a full recovery with no restrictions. Under what statutes is Jane entitled to leave?

   Jane is entitled to leave under the Family and Medical Leave Act (FMLA) as well as the Massachusetts Earned Sick Time Act. Regarding the FMLA, as the largest social media site in the world, it’s safe to assume that SpaceBook has at least 50 employees. In addition, because Jane has worked there for several years, she likely satisfies the FMLA’s other requirement that an employee work at least 1,250 hours in the preceding 12 month period. Finally, Jane’s broken leg constitutes a “serious health condition.” As such, under the FMLA, Jane is entitled to 12 weeks of unpaid leave. At the end of her leave, SpaceBook must allow Jane to resume her original position as a software engineer, or provide her with an “equivalent” role that is virtually identical with respect to pay, benefits, and other facets of her employment. Under Code of Federal Regulations (CFR) §825.203, Jane may take her leave on an intermittent basis and work a reduced schedule under certain circumstances. Jane is also entitled to paid leave under the Massachusetts Earned Sick Time Act, which applies to companies with at least 11 employees. Under the Act, Jane receives 40 hours of paid leave, earned at a rate of one hour per 30 hours worked. However, if Jane also receives paid sick time of at least 40 hours under SpaceBook’s policies, the Act is redundant and does not add to the leave that SpaceBook already offers. Finally, under the FMLA, Jane may choose or SpaceBook may require her to use any accrued paid leave concurrently with her FMLA leave.

2. Is Jane’s spouse, also a SpaceBook employee for several years, entitled to any leave on account of Jane’s injury?

   Yes. Jane’s spouse is entitled to the same amount of leave under the FMLA, which is also triggered when an employee needs to care for an immediate family member with a serious health condition. If Spacebook does not offer paid sick time, the Earned Sick Time Act applies as well, which allows employees paid time off to care for a “child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care.” As stated above, SpaceBook may likewise require Jane’s spouse to use any paid leave concurrently with FMLA leave.

3. In preparation for surgery, Jane’s blood work reveals an abnormality. After more tests, Jane’s doctors diagnose her with a very treatable form of cancer. Although her prognosis is very good, she will be required to undergo chemotherapy and other related treatments over the course of the year. What other statutes apply to Jane?

   Cancer is not only a “serious health condition” under the FMLA, it is also considered a disability and handicap under the Americans with Disabilities Act (ADA) and the Massachusetts Fair Employment Practices Act (FEPA) because, as a result of her cancer, Jane is “substantially limited in a major life activity.” In particular, CFR §1630.2(j)(1)(vii) to the ADA Amendments Act of 2008 makes clear that cancer substantially limits the major life activity of normal cell growth. Similarly, numerous Massachusetts decisions — including Brady v. Art-Cement Products and DeGirolamo v. Syms — interpreting FEPA have held that cancer constitutes a handicap. As such, SpaceBook must participate in what is called the “interactive process” and offer Jane reasonable accommodations that do not pose an undue hardship to the company. In certain circumstances, a reasonable accommodation can include an unpaid medical leave of absence, either continuous or intermittent, beyond the FMLA’s prescribed period of 12 weeks. Like the FMLA, although unpaid, a medical leave as a reasonable accommodation under the ADA or FEPA provides Jane with job protection. Neither the ADA or FEPA have a period of employment requirement. They each, however, possess an employee threshold with the ADA applying to companies with at least 15 employees and FEPA to employers with at least 6 employees.

4. A couple years later, Jane’s cancer is in remission, her leg is fully healed, and she’s playing soccer again. Jane and her spouse are looking forward to starting a family and are considering both conception and adoption. What statutes apply to Jane and her spouse?

   Regardless of whether Jane and her spouse conceive or adopt, both are entitled to unpaid leave under the FMLA, which can be used for the birth or adoption of a child within one year of birth or placement. FMLA leave can also commence before the actual birth or adoption of a child. Because, however, Jane and her spouse both work for the same employer, SpaceBook may limit their combined leave to a total of 12 weeks pursuant to CFR §825.201(b). In contrast, they would each be entitled to 12 weeks of unpaid leave if they worked for different employers. Moreover, under CFR §825.203, Jane and her spouse may take their respective leaves on an intermittent basis only with their employer’s approval. Finally, the Massachusetts Parental Leave Act also applies which, after completing an initial probationary period not to exceed 3 months, entitles employees to 8 weeks of unpaid parental leave. Like the FMLA, SpaceBook may limit the combined leave for both Jane and her spouse to 8 weeks. Although both statutes apply, under CFR §825.701(a), the first 8 weeks of leave under the Massachusetts Parental Leave Act in this example counts against the FMLA allotment of 12 weeks.

   The fact that FMLA leave is unpaid is the subject of debate. Through its LeadOnLeave initiative, for example, the Department of Labor has taken the position that “it’s time to update workplace policies that are stuck in the past and give more Americans paid leave to care for those they love or their own illness without risking their economic security.” And as illustrated the DOL’s informative video, the United States is the only developed nation without paid maternity leave.

5. Jane has twins! Will she and her spouse receive more leave under the FMLA or the Massachusetts Parental Leave Act?

   The MCAD Guidelines (Q&A 6) make clear that the Massachusetts Parental Leave Act affords 8 weeks of leave per child: “An employee who gives birth to twins has given birth two times and is entitled to eight weeks of leave for each child.” As such, with respect to multiple births or adoptions, the Massachusetts Parental Leave Act is more advantageous than the FMLA.

6. Jane and her spouse have both used up all of their vacation days, sick time, and FMLA leave caring for their newborn over the past several months. Do any other leave statutes apply?

   Yes. The Massachusetts Small Necessities Leave Act (SNLA) adopts the same employee threshold and period of employment requirements as the FMLA which, as discussed above, SpaceBook clearly meets. The SNLA permits employees to take a total of 24 hours of unpaid leave during any 12 month period and makes clear that these hours are in addition to the 12 weeks already allowed under the FMLA. Under the SNLA, Jane and her spouse may use this time to: (a) participate in school activities directly related to the educational advancement of their child; (b) accompany their child to routine medical or dental appointments; and (c) accompany an elderly relative of the employee to routine medical or dental appointments or appointments for other professional services related to the elder’s care. Unlike the FMLA, the SNLA does not limit Jane and her spouse to a combined 24 hours despite the fact that they work for the same employer.

• Do you have a workplace leave claim? / Contact → Conforto Law Group
• Our success with workplace leave claims / Our Work → Medical Leave Discrimination
• Workplace leave legal developments / Blog → Medical Leave Discrimination