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important is identifying whether regular, timely attendance is an essential function of the

position.

3.

Determine FMLA/ADA Applicability

While it may seem obvious, employers should as promptly as possible determine

whether the FMLA, ADA or a Massachusetts statute applies to the leave at hand. A medical

situation does not always mean that any one statute applies. A “serious health condition” that

is covered by the FMLA might not be a “disability” covered by the ADA, and vice versa, as

not all disabilities are serious health conditions as defined by the statute.

4.

Designate as FMLA Leave and Determine FMLA Eligibility Immediately.

When an employee requests leave that may be covered by the FMLA, the employer

must do two things within two business days: determine if the leave is covered by the FMLA

and determine if the employee is eligible. See Part I, Section 1.4(A) above. When in doubt

regarding whether the leave is covered by the FMLA, the employer can preliminarily

designate the leave as FMLA leave and retroactively revise the designation if necessary.

With respect to whether employees are eligible for leave, it is important to comply with this

provision promptly as the employee seeking leave needs to know whether she is eligible and

whether, among other things, she has job reinstatement rights prior to taking the leave.

5. Notice

Under the FMLA and MMLA the employer must provide specific notice to the

employee of her rights and obligations under the statutes once the employer learns that the

employee is seeking leave that is covered by the statutes. This provides important

information so that the employee can make informed decisions about taking leave and

returning to work.

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