The Interaction between different statutory leaves of absence and whether a duty to accommodate is warranted after job reinstatement.

By:  Janine Guzmán

Introduction

Puerto Rico is a commonwealth of the United States, and due to its political affiliation with the mainland, most federal employment legislation applies on the island along with local laws. The legal scheme becomes even more complex as we consider that Puerto Rico is a highly regulated jurisdiction in the employment context. For example, there are approximately 19 statutory leaves of absence[1], of which several are health related.  Add to this the federal Family Medical Leave Act (FMLA) which also applies to Puerto Rico – and voluntary leaves of absences typically provided by employers, such as bereavement and paternity leaves[2] and paid holidays.  Human resources leaders are tasked with harmonizing leaves of absence that may apply simultaneously and maintain an accurate administration of the benefits provided by the different leaves. In this article, we will address the challenge of reasonable accommodation requests made by employees returning from health-related leaves of absence and whether there is indeed a duty to accommodate.  

The occupational disability leave of absence[3]

Puerto Rico differs from the continental United States in that Workers Compensation is a mandatory governmental policy.  The State Insurance Fund Corporation (SIF), a public corporation, issues policies and administers claims under the statute.  Coverage must be secured with the agency prior to or simultaneously with the employment of employees. This law covers exempt and non-exempt employees. Securing policies with the SIF has further benefits for employers, as they become immune from claims by employees for work related accidents, so long as they comply with timely payment of the policy premiums[4]. An employee who suffers a work-related accident or illness is entitled to certain statutory benefits under the Workers' Compensation Act, including rehabilitative medical treatment, diets, and compensation for permanent total or partial disability. The cost of all of these benefits is covered by the SIF, again, so long as the employer complies with timely payment of the policy premiums. Additionally, employers are required to reserve the employee’s position for one year (equivalent to 12 months or 360 days) from the onset of the injury if the employee is placed on rest – meaning that they are unable to perform the duties of their position while recovering from the work-related accident. The employer must reinstate the employee upon recovery if (i) the employee requests reinstatement within the 12 month period from the date of the inception of the disability and within 15 days from receiving medical discharge from the SIF; (ii) at the time of the request, the employee is mentally and physically able to perform their duties; and (iii) the employee’s job has not been eliminated at the time of the request. It is worth noting that employers have an affirmative duty to inform the employee about the leave benefits. If the employer refuses to refer the employee to the SIF for medical treatment or terminates the employee during such time without cause, the employee can bring a claim for back pay, reinstatement, and damages. However, the law provides that, once the employment reserve period has expired and the employee has not returned to work, the employer may terminate the employment relationship without need to compensate the employee.

The non-occupational short-term disability leave of absence[5]

The Non-Occupational Short Term Disability Act[6], known by its Spanish acronym as SINOT, mandates employers to provide insurance coverage for all exempt and non-exempt employees for non-occupational illnesses or accidents.  The employer has an option of securing coverage under a government administered plan or with a private insurance carrier. For the latter, the private plan must be approved by the Secretary of Labor of Puerto Rico.  During the first six months of the leave, the employee is entitled to temporary disability benefits ranging from $12.00 to $113.00 weekly for up to 26 weeks within a 52-week period. During the rest period, the employee receives medical treatment from their private physician. As with the SIF, (i) the employee is entitled to an employment reserve of one year (equivalent to 12 months or 360 days) from the onset of the accident or injury; (ii) employers must inform the employee about the leave benefit; (iii) failure to reinstate the employee shall lead to a claim for back pay, reinstatement, and damages; and (iv) the employer may dismiss the employee after the expiration of the employment reserve.  

The principle of reasonable accommodation.  How is it defined?

We have examined to two sources of definition to assess what constitutes a reasonable accommodation: (i) the definition established by the applicable federal statute, Americans with Disabilities Act (ADA)[7] and the Puerto Rico’s Disability Discrimination Act[8], and (ii) the definition of the term according to Merriam Webster’s Dictionary.

ADA

The ADA was established to counteract discrimination by prohibiting any actions that disadvantage individuals based on (i) a physical or mental impairment that “substantially limits” a major life activity,[9] or (ii) a history or record of such an impairment, or (iii) a perception by others as having such an impairment.  Pursuant to the ADA Amendments Act of 2008 (ADAAA), “substantially limiting” is defined as “materially restricting,” a standard that is easier to meet, since an impairment does not have to prevent or significantly restrict a major life activity to meet the burden of a disability under the law[10]. Additionally, both the Equal Employment Opportunity Commission (EEOC) and the US Department of Justice have stated that a medical condition does not need to be long-term, permanent, or severe to be substantially limiting.  In addition, if symptoms come and go, what matters is how limiting the symptoms are when they are active[11]. Employers must consider requests for reasonable accommodations made by disabled employees as part of the protections afforded by ADA. This is commonly referred to as “the duty to accommodate.”  A reasonable accommodation is defined by ADA as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”[12] The employer must engage in an interactive process with the employee to meet the duty to accommodate. This is a collaborative effort to identify a suitable accommodation for the individual. This interactive process should involve the employee, designated officials, and relevant committees, as the case might be, and should aim to determine the most appropriate and effective reasonable accommodation for the employee. Open communication throughout the process is encouraged, especially in situations where (i) the specific limitations or challenges faced by the individual are unclear, (ii) identifying an effective accommodation requires further exploration, (iii) different accommodation options are being considered, and (iv) the current accommodation is no longer effective, necessitating a new solution. Failure to accommodate claims have increased in recent years. According to a study conducted in 2019, out of the 22.8 percent of all working age adults, 47 to 58 percent of accommodation sensitive individuals lack accommodation[13].

Merriam Webster’s Dictionary

According to Merriam Webster’s Dictionary, a reasonable accommodation is something done to accommodate a disabled person that does not jeopardize safety or pose an undue hardship for the party (as an employer or landlord) doing it.[14]  

The undue hardship exception

Whenever an accommodation poses a significant burden, the employer is not obligated to provide it[15].  Different factors are considered, such as, size of the business, financial resources, and/or impact on the business’s normal operation[16].  

When is an employer required to provide reasonable accommodation upon an employee’s return to work from workers’ compensation or short-term non-occupational disability?

While SIF and SINOT are temporary disability programs, it is reasonable to infer that medical conditions or injuries necessitating these leaves of absence may constitute short-term disabilities distinguishable from a disability protected by ADA and PR Act 44 that trigger the employer’s duty to accommodate.  However, there is a growing trend of employees requesting reasonable accommodations upon returning to work after utilizing these leave programs. It is worth noting that the SIF has the faculty to determine partial or total disability of the injured employee after completion of the medical treatment and the employee has the right to receive compensation based on the percentage of the disability that is granted. The compensation amounts to 66 2/3 percent of the wages[17].  In the case of partial disability, compensation is paid for a number of weeks, whereas an employee with total disability will receive the compensation for life. This in itself implies an impairment. Aside from this, the SIF has demonstrated a pattern of incorporating job adjustment recommendations into its administrative or medical decisions, effectively placing an implicit burden on employers to consider implementing these recommendations. Similarly, private healthcare providers under SINOT may also issue such recommendations. Thus, even if a medical condition – at face value – does not seem to be a qualified impairment under the ADA or PR Act 44 and the SIF’s recommendations are consistent with this assessment, Puerto Rico employers are faced with the predicament of having to evaluate every request for accommodation made by an employee. This responsibility is particularly relevant considering the simpler standard set by the ADAAA regarding the term disability and how such a disability affects major life activities. It is important to note that the US Department of Labor has clarified that a health condition need not be long-term to be considered protected[18]. In addition, a federal district court case, for the District of Puerto Rico, highlighted that extending a SIF leave beyond the reserve of employment period could be considered a reasonable accommodation that the employer should consider, especially where the additional leave requested is not expected to be prolonged or perpetual[19]. Moreover, employers must not lose sight of the statutory right of eligible non-exempt employees to request temporary changes in work schedules or locations, as an accommodation for health-related or non-health-related legitimate reasons under Puerto Rico law. Employers must consider the request and respond within a period of time.  The employer’s response may approve or deny the request made by the employee, but a denial must indicate the legitimate business reasons for not granting the request[20].   Conclusion When an employee requests an accommodation, out of an abundance of caution, the employer is encouraged to engage in the interactive process to determine whether the employee qualifies as a disabled individual and whether there is a duty to accommodate. The challenge lies in properly evaluating the employee's medical condition to assess whether it has become an impairment protected by disability discrimination laws.     Note: Bianca Perez-Lugo assisted in the preparation of this article.  

Footnotes

[1]  The applicability of a few of them depend on the employer’s size and certain eligibility requirements. [2]  Paternity leave is not regulated in the private sector in Puerto Rico. [3]  Some exceptions exist, seeing as only four states rely on entirely state-run programs for workers' compensation: North Dakota, Ohio, Washington, and Wyoming. These four states are referred to as monopolistic states as they require their employers to purchase workers’ compensation from a government-operated fund. Workers' Compensation Law - State by State Comparison (archive.org); Workers’ Compensation Insurance in Monopolistic States (thebalancemoney.com) [4] “Occupational Accident Compensation Act”, Act No. 45 of April 18, 1935, as amended11 L.P.R.A. § 1 et. seq. [5]  Other statutory non-occupational short-term disability leaves of absence exists, such as (1) the Automobile Accident Social Protection Act, Act No. 138 0f June 26, 1968, as amended, known by its Spanish acronym as “ACAA”, applicable to non-occupational automobile accidents.  The reserve of employment is six months or 180 days; and (2) the Social Security for Chauffeurs Act, Act No. 428 of May 15, 1950, that applies to non-exempt employees who must drive a motor vehicle (finger lifts included) to perform job duties.  The purpose is to provide (i) illness and disability benefits, (ii) a bonus after reaching the age of 65, and (iii) compensation to surviving spouses and children under 15 years of age, in the event of the death of the insured.  The reserve of employment is 12 months or 360 days.  The illness, disability or death need not be work-related. If the employee is covered by this insurance, SINOT coverage is not required. On the other hand, if the employee is compensated under the SIF, the Social Security for Chauffeurs monetary benefit does not apply unless the compensation is less than what the worker would receive under the Chauffeurs’ Insurance Fund, the difference will be paid by the Chauffeurs’ Insurance Fund. 29 L.P.R.A. §§ 681 – 695.  The employee is entitled to the same remedies provided by SIF and SINOT in the event of a refusal to reinstate upon returning from these leaves. [6] Act No. 139 of June 26, 1968, as amended. [7] Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990). [8] Puerto Rico Act No. 44 of July 2,1985, as amended (PR Act 44). This statute mirrors ADA. [9] E.g., walking, talking, seeing, hearing, or learning, or operation of a major bodily function, such as brain, musculoskeletal, respiratory, circulatory, or endocrine function. Americans with Disabilities Act, § 2(a) (42 U.S.C. 12101) (1990). [10]  ADA, Rehabilitation Act, 29 CFR Part 1630, 29 CFR Part 1614 [11]    United States Department of Labor, Reasonable Accommodations for Employees and Applicants with Disabilities | U.S. Department of Labor (dol.gov), Accommodations | U.S. Department of Labor (dol.gov); United States Department of Justice, Civil Rights Division Introduction to the Americans with Disabilities Act | ADA.gov, Employees & Job Applicants | U.S. Equal Employment Opportunity Commission (eeoc.gov). [12]   Americans with Disabilities Act, § 2(a) (42 U.S.C. 12101) (1990). [13] Nicole Maestas, Kathleen J. Mullen, Stephanie Rennane, Unmet Need for Workplace Accommodation WILEYONLINELIBRARY, (16 may 2019), https://doi.org/10.1002/pam.22148, (Last visit: June 21, 2024.) [14] Reasonable accommodation Definition & Meaning | Merriam-Webster Legal. [15]   ADA, Rehabilitation Act, 29 CFR Part 1630, 29 CFR Part 1614 [16]  The ADA: Your Responsibilities as an Employer | U.S. Equal Employment Opportunity Commission (eeoc.gov) [17]  Act No. 45 of 18 April 1935, as amended. [18]  Disability Discrimination and Employment Decisions | U.S. Equal Employment Opportunity Commission (eeoc.gov); Reasonable Accommodations for Employees and Applicants with Disabilities | U.S. Department of Labor (dol.gov)  [19] Criado v. IBM Corp., 145 F.3d 437; Edwin R. García Díaz, Demandante y Recurrente v. Darex Puerto Rico, Inc.; W.R. Grace & Company, Demandado y Recurridos, 148 D.P.R. 364; Pérez Rosario v. Aut. de Acueductos y Alcantarillados de P.R., 2022 PR App. LEXIS 1787. [20] Article 8 of Act No. 379 of May 15, 1948.