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