Alphabet Soup of Unpaid Leave


Something important has come up in various sectors of my life this week, and has been a point of discussion in several online communities, even outside my PI world. There are a vast number of people who seem to be experiencing employment issues around the various ways their jobs are protected under federal law. If you feel your rights have been violated, please contact the EEOC or an attorney to get more clarification, as this is not legal advice and only meant to clarify things a bit to give you some ways to start a conversation.

Let’s start with some definitions to ensure we’re all on the same page.

FMLA - Family and Medical Leave Act - FMLA was signed into law in February of 1993. Broadly, its provisions state that, provided your employer is large enough, you are entitled to take unpaid leave, provided you meet certain requirements. Not every person at every employer qualifies for FMLA leave.

ADA - Americans with Disabilities Act - ADA has much broader applicability and can be anything from needing an assistive device or extra time for a particular work task to having adequate hall space for wheelchairs. Certain types of unpaid leave can be seen as a reasonable accommodation under the ADA.

The first point I want to make is a vital one. If you do not disclose the nature of your condition to your employer, you don’t qualify for most protections. Some people are not comfortable doing this with their immediate colleagues, but it should be discussed directly with your human resources professional, even if you do not think you will need the protections. You never know, and it’s better to have an unnecessary conversation than to lose necessary protections. You must be proactive to qualify for either type of unpaid leave. Many large employers will have a form you can fill out that will help them determine the applicable type of unpaid leave you need.

I personally have never needed to take advantage of FMLA and most of my employers have been too small for me to rely on those protections. I have, however, taken full advantage of protections under the ADA. There are some important differences between the two and, hopefully, I can clarify some of that now.

FMLA protections are very well-defined. You can have up to 12 weeks of continuous, intermittent, or reduced-schedule unpaid leave (for your medical care or that of a family member) after working for a covered employer for at least 12 months. Most of the PI patients I know who have used FMLA protections have done so on an intermittent basis. Basically, this allows you to have protection when you use your sick leave for doctor’s appointments, illness, etc, gives you cushion for if you exhaust that leave, and will give you the right to come back to the same level of opportunity as though you never had a leave of absence. This is not necessarily the same job you had before, but it must be the same level with the same pay as your previous position.

ADA unpaid leave is a different animal. I’ve used this simply because, in many circumstances, I needed the unpaid leave when I was first employed and waiting to accrue enough sick leave for treatments, etc. This leave offers some additional flexibility, but is meant to be limited in duration and for a specific purpose. Like in my case, when you don’t have the leave to get a defined medical intervention and your employer understands when they can expect you to return at full capacity. This type of unpaid leave only applies as a reasonable accommodation for your illness, in this case PI. The typical unpredictable leave needed by PI patients would be unlikely to fall into this bucket and is better suited to FMLA leave, in most cases. The ADA leave is more strict in its metrics on what is and is not allowed to qualify, so this would warrant review by an outside party to ensure that it’s a reasonable accommodation.

If your employer is not large enough to offer FMLA protections, there is the chance that you would be fired for your attendance. That’s really awful, but it’s how your individual rights are balanced with the needs of your employer.

Obviously, this is a vast simplification of the root issue, but it’s a starting point to understand your rights as an employee. Furthermore, your city and/or state may have additional protections, so it’s best to contact your local area employment agencies or an employment attorney for the most accurate possible information.

As always, you can look forward to my personal experience with employment issues in the near future… stay tuned!