CBA Record May-June 2025

MAY IS MENTAL HEALTH AWARENESS MONTH.

the need for leave, which “may include information on symptoms, diagnosis, hospitalization, doctor visits . . . or any other regiment of continuing treatment.” 29 CFR §825.306(a). If the certification is not complete or sufficient, the employer must state what additional information is necessary and give the employer seven days to resubmit it. 29 CFR §825.305(c). Once the employee submits a complete and sufficient certification, the employer may not request additional information from the employee’s health care pro vider, though they may seek clarification or authorization of information already furnished. 29 CFR §825.307(a). If the employee does not provide sufficient clar ification, the leave request may be denied. Employees who take FMLA leave have a range of protections. Generally, they must be restored to the position they held prior to the leave or to an equivalent position. While on leave, health benefits provided by the employer must be main tained as if the employee had continued to work. FMLA also prohibits employ ers from retaliating against an employee for requesting or using FMLA leave. This includes a prohibition on considering use of FMLA leave “as a negative factor in employment actions, such as hiring, pro motions or disciplinary actions.” 29 CFR §825.220(c). ADA If an employer’s policy or the FMLA do not apply, or if additional leave is required beyond the 12 weeks the FMLA provides, an employee may be able to request leave as a reasonable accommodation under the

ADA. The ADA applies to employers with at least 15 employees. Covered employers are required to provide reasonable accom modations to qualified individuals with disabilities. Under the ADA, a disability is “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1). Under the ADA, someone is a “qualified indi vidual” if they can perform the essential functions of their job with or without rea sonable accommodation. A reasonable accommodation is a change to work environment or employer policies that allow someone with a dis ability to perform the essential functions of their job. Unpaid leave can be a rea sonable accommodation when it helps an employee return to work or stay at work and is not an undue hardship to the employer. For example, it may be a rea sonable accommodation to take leave for a surgery or to seek mental health treat ment. Under Seventh Circuit authority, leave as an accommodation may only extend for weeks, rather than months, and must include a more-or-less definite return date (e.g., taking leave for a surgi cal procedure that has a typical recovery time of two weeks). See, e.g., McAllister v. Innovation Ventures, LLC, 983 F.3d 963, 971–72 (2020); Severson v. Heartland Woodcraft, 872 F.3d 476, 481 (2017); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591, 601 (1998). An employee seeking short-term leave as an accommodation from a general policy requiring in-person attendance will want a medical professional to document that they are receiving treatment and that,

with a brief leave, the medical likelihood of recovery is good. Whitaker v. Wisc. Dep’t of Health Srvs., 849 F.3d 681, 685 (7th Cir. 2017) (affirming summary judgment where employee seeking leave “did not offer evidence regarding the effectiveness of her course of treatment or the medical likelihood of recovery”). As an alternative to leave, an employee may request flexible hours or specific shifts that could accommodate medical treatment or help ease a disability-related condition. While not required, it is a best practice to request reasonable accommodations in writing. Once requested, an interactive process begins, during which an employer may ask questions about the disability and request. Employees who exercise rights under the ADA are protected from discrimi nation. Employers may not discrimi nate against qualified individuals on the basis of disability, including in regard to advancement, discharge, compensa tion, and other terms, conditions, and privileges of employment. This includes prohibiting retaliation against individu als who have engaged in ADA-protected activities, like requesting a reasonable accommodation.

Marlena Johnson is a staff attorney and Equal Justice Works fellow at Equip for Equality, sponsored by an anonymous donor and focused on anti-discrimination and employment law.

Tabs3 Software is proud to offer CBA members a 10% discount on new orders. Tabs3 provides an intuitive, integrated suite of legal billing, practice management, accounting, payment, CRM, and website solutions. Choose from Tabs3 Cloud, hosted, and on-premises server options that provide privacy,

security, and advanced performance. All include outstanding US-based support. Schedule a personal demo to learn more. at info.tabs3.com/chicago-bar-association.

CBA RECORD 39