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Employee Requests for Medical Leave: Self-Storage Owner Rights and Obligations

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By Ellen Storch

Imagine the following scenario: The manager of one of your self-storage properties, Joe, tells you he’s been diagnosed with cancer. The good news is that it’s likely treatable with chemotherapy and surgery. The bad news is he needs time off for treatment, and his doctors don’t know exactly how long he’ll be unable to work. They estimate he’ll need approximately two months.

You’re sympathetic. However, he’s only been employed with your company for five months and has already used all his paid time off (PTO). Do you have to grant his request for leave, even though he can’t tell you precisely how long he’ll be out? If you allow him to take leave, do you have to pay him? If so, how much?

Let’s add a layer and say Joe isn’t an effective property manager. You were thinking about replacing him before you learned about his illness. Can you still fire him?

The answer to these commonly asked questions is, “It depends.” Several laws come into play when employees seek medical leave. The following is a summary of what employers must consider when evaluating these requests.

Leave Entitlement

First, you must consider whether Joe is entitled to leave under the Family and Medical Leave Act (FMLA). The FMLA requires certain employers to grant up to 12 weeks of job-protected leave to employees with a “serious health condition.” If you employ 50 or more people within a 75-mile radius, your business is covered by the FMLA.

Joe’s cancer is considered a serious health condition, but is he eligible for FMLA leave? Employees don’t become entitled until they’ve worked for you for 12 months. They also must have worked at least 1,250 hours during that year. Since Joe has worked for only five months, he’s not eligible.

Notably, if Joe had been employed for a year and worked the requisite hours, he would be entitled to up to 12 weeks of job-protected FMLA leave. However, since he’s already used all his PTO, you wouldn’t be obligated to pay him during that time. If he had PTO remaining, depending on how your FMLA policy is written, you could require him to use the residual during his leave.

Next, you must evaluate your obligations under the Americans With Disabilities Act (ADA), which covers employees even before their first day of work, during the hiring process. The ADA applies to your business if you employ more than 15 people. In many jurisdictions, businesses with fewer than 15 employees are governed by similar state or local laws.

If an employee is considered “disabled” under the ADA, employers must provide “reasonable accommodations” if doing so will allow the staff member to perform his essential job functions. The definition of disability under the ADA is broad. Joe’s cancer renders him disabled under the law since, among other factors, he’s substantially limited in the major life activity of normal cell growth.

An accommodation is considered reasonable and must be provided unless it would cause the employer “undue hardship.” This analysis must be done on a case-by-case basis. An accommodation is likely an undue hardship if it would significantly disrupt operation, fundamentally alter the employee’s job, substantially impact the employer’s ability to serve customers or require the employer to incur significant overtime expenses. The employer’s size and resources must be considered. If an accommodation would be costly to implement, especially in light of the employer’s financial resources, it’s more likely to be considered an undue hardship.

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