ASU OGC Briefing Papers | Illness, Injury and Leaves of Absence at ASU

ASU Office of General Counsel--Section Title:
Briefing Papers

ILLNESS, INJURY AND LEAVES OF ABSENCE AT ASU

Family & Medical Leave Act Americans with Disabilities Act Workers' Compensation

Conditions Triggering Coverage Birth, adoption or foster placement of child;
Serious health condition of employee;
Serious health condition of immediate family member
An applicant for employment or an employee who (1) has a physical or mental disability, (2) has a record of having had a physical or mental disability; or (3) is perceived as having a physical or mental disability. Illness, injury, disability or death arising out of and in the course of employment

Covered Individuals Eligible employee OR member of employee's immediate family Applicant for employment or employee Every employee

Eligibility Requirements An eligible employee is one who has been employed by ASU for at least 12 months and worked at least 1250 hours during the previous 12 months⁽¹⁾. Job applicants or employees -- no minimum time requirements All employees -- no minimum time requirements

Parental Leave
(SPP 708)
(ACD 710)
An eligible employee will receive paid leave for the 6 weeks immediately following the birth or adoption of a child. The paid leave is per family/per birth or adoption event. FAQ NA NA
Is Employee Required to Use Sick Leave?
(SPP 701-01)
(ACD 702-02)
Yes, sick leave must be used concurrently with FMLA leave at the rate of not less than 50% when the leave is requested due to the serious health condition of the employee or his/her family member. Discretionary use, [still at minimum use level of 50%] at option of employee, when reason for leave is birth, adoption or foster placement. Use of sick leave does not occur until parental leave is exhausted. Yes. If an employee is on a leave of absence as a reasonable accommodation for his or her disability, they must use their accrued sick leave balance.

Once sick leave is exhausted, employee can apply other paid leave balances (e.g., vacation, compassionate transfer of leave (SPP 702-04) or go into non-pay status.
Workers' Compensation will pay 66 2/3 % of employee's average monthly wage. ⁽²⁾ Employee may, but is not required, to use accrued sick leave balance to cover 33 1/3 % difference.

Is Employee Required to Use Vacation Leave?
(SPP 702-01)
(ACD 704-01)
(ACD 704-02)
No. However, vacation time may be used by the employee, but it is the employee's sole choice. If the employee chooses to not use vacation hours, then s/he goes into non-pay status. No. Same application as under FMLA. Once sick leave accrual is exhausted, it is employee's optional choice to apply vacation hours to supplement workers' compensation, up to but not to exceed full salary or wages.

Short Term Disability (STD) Insurance If employee has purchased short-term disability insurance and is on FMLA leave due to their own serious health condition and they meet the coverage conditions of the insurance policy, they can collect STD benefits in addition to other paid leave.
Where an eligible employee is receiving short term disability benefits due to the birth of a child, paid parental leave will be coordinated so the value of the leave does not exceed the employee's regular salary or wages.
Same application as under FMLA. Both STD carriers exclude occupational injuries for which you receive workers' compensation benefits.

Compassionate Transfer of Leave
(SPP 702-04)
(ACD 704-03) If employee is in non-pay status or is not eligible for FMLA leave and meets the other conditions for eligibility under SPP 702-04, then ASU must coordinate the payment of benefits in the particular pay period so that value of leave transferred does not exceed the full value of the salary or wages to which the employee is entitled. If the employee is on a leave of absence as a reasonable accommodation under ADA and meets the eligibility requirements of SPP 702-04, then ASU must coordinate the payment of benefits in the particular pay period so that the value of leave transferred does not exceed the full value of the salary or wages to which the employee is entitled. Employee out with an industrial injury or illness who meets the eligibility criteria for SPP 702-04 can only receive benefits equaling 33 1/3 % as supplement to workers' compensation benefits.

What Happens When Paid Leave is Exhausted? FMLA provides for up to 12 weeks of unpaid leave. When employee exhausts paid leave, s/he is placed into non-pay status. Still receives benefits of Act, but must make arrangements to pay employee portion of health care premiums (contact Benefits Office for assistance in this area).

See also, Compassionate Transfer of Leave. (SPP 702-04) or (ACD 704-03).
Granting an extended leave of absence may be a reasonable accommodation. If the employee has exhausted paid leave, then s/he would go into non-pay status.

See also, Compassionate Transfer of Leave.
An employee who exhausts paid leave balances would continue to receive his/her workers' compensation benefits, but would not be able to supplement the balance of the salary or wages.

See also, Compassionate Transfer of Leave.

Duration of the Leave of Absence Under the FMLA, an eligible employee can take up to 12 weeks of leave in any 12 month period calculated from anniversary date of hire.⁽³⁾

One exception: Where wife and husband both work at ASU and are requesting leave for the purpose of caring for a new born/adoptee or foster child), then they are only entitled to an aggregate of 12 weeks (not 24). Leave must be taken within 12 months immediately following birth, adoption or placement.
If both spouses or domestic partners work at ASU and seek parental leave, the leave must be taken in the 6 weeks immediately following the birth or adoption of a child.
Depends upon the facts of the specific case and medical documentation that is provided. Case law is clear that employers do not have to grant indefinite leaves of absence. Nor do employers have to grant a leave if the medical documentation indicates that the employee will never be able to work again. However, where employers have leave of absence policies -- granting extended leave is considered to be a reasonable accommodation. Depends upon the facts of the specific case.

Maximum length of time that an employee could be out before termination would be 12 months (see SPP 215 -- Alternate Duty and SPP 705-01 -- Extended Leave).

Definitions "Serious Health Condition" is an illness, injury, impairment or physical or mental condition that involves in-patient care OR continuing treatment by health care provider (covers 5 situations).

MAY also constitute a disability under ADA (e.g., most cancers, serious strokes).
"Disability" is a physical or mental impairment that substantially limits one or more major life activities; a record of having such an impairment; or being regarded as having such an impairment.

An impairment is a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder. (E.g., Under this definition, pregnancy is not a disability because it is not a physiological disorder).
Disability under the workers' compensation law can differ from disability under ADA -- impairments resulting from occupational injury may not be severe enough to substantially limit a major life activity, or they may be only temporary, non-chronic, and have little or no long term impact.

Medical Certifications Employer can request information without violating ADA because the limited inquiry is "job-related and consistent with business necessity."

(use Certification of Health Care Provider form)

Employer cannot talk directly to employee's health care provider
Employer can contact employee's health care provider so long as inquiry is "job-related and consistent with business necessity." ASU can obtain medical information related to its employee's occupational injury or illness if requested for proper understanding of the case and determination of the rights involved. (ARS §23-908.C)

Fitness for Duty Forms ASU can require a Fitness for Duty/ Release to Return to Work form from the employee's health care provider, if the employee is told at the outset that submission of a fitness for duty or return to work form will be a prerequisite to returning. ASU can deny restoration of employment until form submitted.

Should apply this requirement uniformly for all similarly situated employees (same occupation, same serious health condition).

Employee is responsible for the cost of obtaining the certification.
ASU can require from an employee who has been off work for a period of time due to their disability so long as the request is "job related and consistent with business necessity." Employee must provide a release to return to work from his or her physician. The release can be with or without restriction. If "with restriction," see Alternate Duty Policy SPP 215.

Confidential Medical Files Employer may keep a single confidential medical file for each employee, separate from the usual personnel file, for medical documentation, under both FMLA and ADA if the employer follows ADA confidentiality standards. ADA confidentiality standards allow disclosure only as follows: (1) sup'rs and mgrs may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations, (2) first aid and safety personnel may be told, when appropriate, if the disability might require emergency treatment, (3) gov't officials investigating compliance with ADA, (4) employers may give information to state workers' compensation offices, (5) employers may use the information for insurance purposes. Medical information regarding an employee's occupational injury or illness should be collected and maintained in a separate medical file, apart from the personnel file, per ADA's confidentiality standards.

Job Assignment upon Return to Work Employee is to be restored to his or her former position or an equivalent position.

"Equivalent position" means a position virtually identical to the employee's former position in terms of pay, benefits, working conditions, including privileges, perks and status; it must entail substantially equivalent skill, effort, responsibility and authority.

Employee returning from an extended leave of absence made as a reasonable accommodation is entitled to his or her job.

If the employee can no longer perform the essential functions of the job (with or without reasonable accommodation), then ASU must offer to transfer the employee to any existing vacant position for which the employee is qualified (can be lower pay grade, have a difference in employment benefits and different duties). ASU is not required to create a position for which the employee is qualified.
Employee returning from occupational injury or illness can be placed in his or her former position or to a comparable position within the department without loss of benefits or rate of compensation.

Relationship Between the Laws FMLA and ADA both require a covered employer to grant medical leave to an employee in certain circumstances.

FMLA and Title VII both have requirements governing leave for pregnancy and pregnancy-related conditions.
Like FMLA, ADA addresses requirements for granting medical leave to employees in certain circumstances.

ADA prohibits employers from discriminating against qualified individuals because of disability in all aspects of employment.
Workers' Compensation law is to provide a system for securing prompt and fair settlement of employees' claims against employers for occupational injury and illness.

ASU Policy SPP 705-02
ACD 702-03

ACD 405

ACD 601-06
SPP 504-02

ASU Resources Benefits Office (480-965-2701)
Office of General Counsel (480-965-4550)
ASU at the West campus Human Resources (602-543-8400)
ADA Coordinator (480-965-5057)
Office of General Counsel (480-965-4550)
Benefits Office (480-965-2701)
Office of General Counsel (480-965-4550)
ASU at the West campus Human Resources (602-543-8400)

Enforcing Agency U.S. Department of Labor Equal Employment Opportunity Commission (EEOC) Industrial Commission

1. Note: Pregnancy Discrimination Act ("Act") applies to all employees -- there is no minimum time that must be worked to be covered under the Act as opposed to the eligibility requirements of the FMLA. Pursuant to the Act, if an employer offers temporary or short-term disability leave, pregnancy and related conditions must be treated the same as non-pregnancy conditions.

2. ARS §23-1041.D directs that in computing the employee's average monthly wage, the exclusion from such computation of all wages or other compensation in excess of:
An injury sustained before 1/1/08 - $28,800;
An injury sustained on or after 1/1/08 and before 1/1/09 - $36,000;
An injury sustained on or after 1/1/09 and before 1/1/10 - $43,000;
An injury sustained on or after 1/1/10 - amount set annually by state DES per statutory guidelines.

3. If the time allowed under Family Leave is exhausted and the employee or the member of his or her immediate family/ established household has not regained their health, the employee may request up to three (3) additional months of extended leave of absence for medical reasons (SPP 705-01).

	Family & Medical Leave Act	Americans with Disabilities Act	Workers' Compensation
Conditions Triggering Coverage	Birth, adoption or foster placement of child; Serious health condition of employee; Serious health condition of immediate family member	An applicant for employment or an employee who (1) has a physical or mental disability, (2) has a record of having had a physical or mental disability; or (3) is perceived as having a physical or mental disability.	Illness, injury, disability or death arising out of and in the course of employment
Covered Individuals	Eligible employee OR member of employee's immediate family	Applicant for employment or employee	Every employee
Eligibility Requirements	An eligible employee is one who has been employed by ASU for at least 12 months and worked at least 1250 hours during the previous 12 months⁽¹⁾.	Job applicants or employees -- no minimum time requirements	All employees -- no minimum time requirements
Parental Leave (SPP 708) (ACD 710)	An eligible employee will receive paid leave for the 6 weeks immediately following the birth or adoption of a child. The paid leave is per family/per birth or adoption event. FAQ	NA	NA
Is Employee Required to Use Sick Leave? (SPP 701-01) (ACD 702-02)	Yes, sick leave must be used concurrently with FMLA leave at the rate of not less than 50% when the leave is requested due to the serious health condition of the employee or his/her family member. Discretionary use, [still at minimum use level of 50%] at option of employee, when reason for leave is birth, adoption or foster placement. Use of sick leave does not occur until parental leave is exhausted.	Yes. If an employee is on a leave of absence as a reasonable accommodation for his or her disability, they must use their accrued sick leave balance. Once sick leave is exhausted, employee can apply other paid leave balances (e.g., vacation, compassionate transfer of leave (SPP 702-04) or go into non-pay status.	Workers' Compensation will pay 66 2/3 % of employee's average monthly wage. ⁽²⁾ Employee may, but is not required, to use accrued sick leave balance to cover 33 1/3 % difference.
Is Employee Required to Use Vacation Leave? (SPP 702-01) (ACD 704-01) (ACD 704-02)	No. However, vacation time may be used by the employee, but it is the employee's sole choice. If the employee chooses to not use vacation hours, then s/he goes into non-pay status.	No. Same application as under FMLA.	Once sick leave accrual is exhausted, it is employee's optional choice to apply vacation hours to supplement workers' compensation, up to but not to exceed full salary or wages.
Short Term Disability (STD) Insurance	If employee has purchased short-term disability insurance and is on FMLA leave due to their own serious health condition and they meet the coverage conditions of the insurance policy, they can collect STD benefits in addition to other paid leave. Where an eligible employee is receiving short term disability benefits due to the birth of a child, paid parental leave will be coordinated so the value of the leave does not exceed the employee's regular salary or wages.	Same application as under FMLA.	Both STD carriers exclude occupational injuries for which you receive workers' compensation benefits.
Compassionate Transfer of Leave (SPP 702-04) (ACD 704-03)	If employee is in non-pay status or is not eligible for FMLA leave and meets the other conditions for eligibility under SPP 702-04, then ASU must coordinate the payment of benefits in the particular pay period so that value of leave transferred does not exceed the full value of the salary or wages to which the employee is entitled.	If the employee is on a leave of absence as a reasonable accommodation under ADA and meets the eligibility requirements of SPP 702-04, then ASU must coordinate the payment of benefits in the particular pay period so that the value of leave transferred does not exceed the full value of the salary or wages to which the employee is entitled.	Employee out with an industrial injury or illness who meets the eligibility criteria for SPP 702-04 can only receive benefits equaling 33 1/3 % as supplement to workers' compensation benefits.
What Happens When Paid Leave is Exhausted?	FMLA provides for up to 12 weeks of unpaid leave. When employee exhausts paid leave, s/he is placed into non-pay status. Still receives benefits of Act, but must make arrangements to pay employee portion of health care premiums (contact Benefits Office for assistance in this area). See also, Compassionate Transfer of Leave. (SPP 702-04) or (ACD 704-03).	Granting an extended leave of absence may be a reasonable accommodation. If the employee has exhausted paid leave, then s/he would go into non-pay status. See also, Compassionate Transfer of Leave.	An employee who exhausts paid leave balances would continue to receive his/her workers' compensation benefits, but would not be able to supplement the balance of the salary or wages. See also, Compassionate Transfer of Leave.
Duration of the Leave of Absence	Under the FMLA, an eligible employee can take up to 12 weeks of leave in any 12 month period calculated from anniversary date of hire.⁽³⁾ One exception: Where wife and husband both work at ASU and are requesting leave for the purpose of caring for a new born/adoptee or foster child), then they are only entitled to an aggregate of 12 weeks (not 24). Leave must be taken within 12 months immediately following birth, adoption or placement. If both spouses or domestic partners work at ASU and seek parental leave, the leave must be taken in the 6 weeks immediately following the birth or adoption of a child.	Depends upon the facts of the specific case and medical documentation that is provided. Case law is clear that employers do not have to grant indefinite leaves of absence. Nor do employers have to grant a leave if the medical documentation indicates that the employee will never be able to work again. However, where employers have leave of absence policies -- granting extended leave is considered to be a reasonable accommodation.	Depends upon the facts of the specific case. Maximum length of time that an employee could be out before termination would be 12 months (see SPP 215 -- Alternate Duty and SPP 705-01 -- Extended Leave).
Definitions	"Serious Health Condition" is an illness, injury, impairment or physical or mental condition that involves in-patient care OR continuing treatment by health care provider (covers 5 situations). MAY also constitute a disability under ADA (e.g., most cancers, serious strokes).	"Disability" is a physical or mental impairment that substantially limits one or more major life activities; a record of having such an impairment; or being regarded as having such an impairment. An impairment is a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder. (E.g., Under this definition, pregnancy is not a disability because it is not a physiological disorder).	Disability under the workers' compensation law can differ from disability under ADA -- impairments resulting from occupational injury may not be severe enough to substantially limit a major life activity, or they may be only temporary, non-chronic, and have little or no long term impact.
Medical Certifications	Employer can request information without violating ADA because the limited inquiry is "job-related and consistent with business necessity." (use Certification of Health Care Provider form) Employer cannot talk directly to employee's health care provider	Employer can contact employee's health care provider so long as inquiry is "job-related and consistent with business necessity."	ASU can obtain medical information related to its employee's occupational injury or illness if requested for proper understanding of the case and determination of the rights involved. (ARS §23-908.C)
Fitness for Duty Forms	ASU can require a Fitness for Duty/ Release to Return to Work form from the employee's health care provider, if the employee is told at the outset that submission of a fitness for duty or return to work form will be a prerequisite to returning. ASU can deny restoration of employment until form submitted. Should apply this requirement uniformly for all similarly situated employees (same occupation, same serious health condition). Employee is responsible for the cost of obtaining the certification.	ASU can require from an employee who has been off work for a period of time due to their disability so long as the request is "job related and consistent with business necessity."	Employee must provide a release to return to work from his or her physician. The release can be with or without restriction. If "with restriction," see Alternate Duty Policy SPP 215.
Confidential Medical Files	Employer may keep a single confidential medical file for each employee, separate from the usual personnel file, for medical documentation, under both FMLA and ADA if the employer follows ADA confidentiality standards.	ADA confidentiality standards allow disclosure only as follows: (1) sup'rs and mgrs may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations, (2) first aid and safety personnel may be told, when appropriate, if the disability might require emergency treatment, (3) gov't officials investigating compliance with ADA, (4) employers may give information to state workers' compensation offices, (5) employers may use the information for insurance purposes.	Medical information regarding an employee's occupational injury or illness should be collected and maintained in a separate medical file, apart from the personnel file, per ADA's confidentiality standards.
Job Assignment upon Return to Work	Employee is to be restored to his or her former position or an equivalent position. "Equivalent position" means a position virtually identical to the employee's former position in terms of pay, benefits, working conditions, including privileges, perks and status; it must entail substantially equivalent skill, effort, responsibility and authority.	Employee returning from an extended leave of absence made as a reasonable accommodation is entitled to his or her job. If the employee can no longer perform the essential functions of the job (with or without reasonable accommodation), then ASU must offer to transfer the employee to any existing vacant position for which the employee is qualified (can be lower pay grade, have a difference in employment benefits and different duties). ASU is not required to create a position for which the employee is qualified.	Employee returning from occupational injury or illness can be placed in his or her former position or to a comparable position within the department without loss of benefits or rate of compensation.
Relationship Between the Laws	FMLA and ADA both require a covered employer to grant medical leave to an employee in certain circumstances. FMLA and Title VII both have requirements governing leave for pregnancy and pregnancy-related conditions.	Like FMLA, ADA addresses requirements for granting medical leave to employees in certain circumstances. ADA prohibits employers from discriminating against qualified individuals because of disability in all aspects of employment.	Workers' Compensation law is to provide a system for securing prompt and fair settlement of employees' claims against employers for occupational injury and illness.
ASU Policy	SPP 705-02 ACD 702-03	ACD 405	ACD 601-06 SPP 504-02
ASU Resources	Benefits Office (480-965-2701) Office of General Counsel (480-965-4550) ASU at the West campus Human Resources (602-543-8400)	ADA Coordinator (480-965-5057) Office of General Counsel (480-965-4550)	Benefits Office (480-965-2701) Office of General Counsel (480-965-4550) ASU at the West campus Human Resources (602-543-8400)
Enforcing Agency	U.S. Department of Labor	Equal Employment Opportunity Commission (EEOC)	Industrial Commission