Navigating the FMLA and ADA: Employer Obligations and Opportunities
When an employee has a medical condition and needs some leave time or other job adjustments, they are often protected by two separate and distinct federal labor laws: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). The purpose of this article is to explain how these two pieces of legislation interact and to describe some best practices for you with respect to leave administration.
The FMLA is a federal law that provides both job-protected leave and benefits continuation rights to employees who need to take leave for their own serious health condition. (The FMLA also provides leave for several other reasons, but in this article we will focus on an employee’s own serious health condition.) All public agencies, regardless of size, and private employers with 50 or more employees are required to comply with the provisions of the FMLA. For an employee to be eligible, they must have worked for the company for at least 12 months in the last seven years, have worked at least 1,250 hours for the company during the 12 calendar months immediately preceding the leave, be employed at a work site that has 50 or more employees within a 75-mile radius, and have a serious medical condition that precludes them from working a regular schedule. If the employee meets all of these criteria, they are eligible for up to 12 weeks of unpaid leave, which may be taken either in a lump sum or on an intermittent basis.
The Americans with Disabilities Act (ADA) is a federal law that not only prohibits employers from discriminating against employees with disabilities, but also requires employers to provide reasonable workplace accommodations to qualified applicants and employees with disabilities. The ADA applies to all public employers and any private employer with 15 or more employees. A disability is generally defined as a physical or mental impairment that substantially limits one or more major life activity. The employer is required to provide reasonable accommodations as long as doing so does not create an undue hardship on the organization.
When an employee has a medical condition that prevents them from working their regular schedule, sometimes only one of these Acts will apply, but at other times they will both come into play. So while the Acts operate independently, there is certainly the potential for crossover. Sometimes, the employee will only meet the eligibility criteria for protection under one of the two Acts. An important rule of thumb: if the employee requests a leave of absence only and no workplace accommodations, FMLA should be exhausted prior to the leave being classified as an ADA accommodation. Let’s look at some examples.
- An employee takes 12 weeks of maternity leave after experiencing a normal, healthy pregnancy, childbirth, and recovery. (ADA doesn’t apply, as there is no disability.)
- An employee needs three weeks off of work due to appendicitis surgery and recovery, but makes a full recovery. (ADA doesn’t apply, as there is no disability.)
- An employee needs eight weeks off for heart surgery and his employer has less than 50 employees. (FMLA doesn’t apply.)
- An employee severely injures her back and has a lifting restriction, but does not require time off of work. (FMLA only provides time off; other accommodations fall exclusively under the ADA.)
- An employee needs four weeks off of work to attend an alcohol rehabilitation program and has only worked for the company for three months, so they are not eligible for FMLA.
Both FMLA and ADA:
- An employee is diagnosed with cancer and needs to have surgery and 16 weeks to recover. After that time she may return on a reduced schedule basis. (The first 12 weeks would be FMLA and the next four weeks and the reduced working schedule would be an ADA accommodation.)
- An employee needs six weeks off for hernia surgery, and when he returns to work he may not lift more than 10 pounds for six months. (The six-week leave would be FMLA, while the job modifications to remove lifting requirements would be an ADA accommodation.)
Both Acts allow an employer to request medical certification, and it is certainly considered a best practice to do so. The employer is not in a position to determine medical eligibility for protection under either of these Acts; therefore, the employer should always allow the employee’s treating physician to make the eligibility determination. Under the FMLA, this is achieved using the WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition. Under the ADA, this is generally accomplished using the ADA Medical Inquiry Form.
We often hear from employers that they appreciate the FMLA’s black and white guidelines regarding eligibility, length of leave, and benefits continuation procedures, but they find their responsibilities under the ADA to be a bit nebulous. For example, the FMLA clearly states that an employee with a serious health condition may take up to 12 weeks of job-protected leave within each 12-month period. But the ADA does not set a timeframe with respect to maximum leave time. Rather, it states that the employer must accommodate the employee until such point when providing the accommodations causes undue hardship. There have been cases in which the employer was required to provide job-protected leave as a reasonable accommodation under the ADA for periods exceeding twelve months. Whether a long leave will create an undue hardship is a fact-specific finding unique to each organization based on several factors, such as staffing plans, the organization’s resources, and the nature of the employee’s position. So if you deny extended leave as an accommodation under the ADA, it is very important that you clearly document how such leave would create an undue hardship on the organization.
As a side note, it is important to mention that the ADA and the FMLA are not the only laws that may apply to an employee’s leave. These are the two federal laws that generally apply to medical conditions and leave, but some states have acts that provide additional protection to employees. Therefore, it is important to also check your state’s medical leave laws to ensure your employees are provided with all statutory leave and benefits to which they are entitled.
When an employee comes to you to disclose a medical issue and to request leave or other accommodations, remember to determine the employee’s statutory rights under the ADA and the FMLA separately. Then, determine how to coordinate the employee’s protections under the separate statutes to ensure compliance with both of them. Don’t forget the important step of medical certification and make sure to internally document all conversations with the employee regarding leave or other accommodations. Remember to stay in touch with the employee throughout the leave and work with them based on the recommendation of their treating physician to see how you may best accommodate them to get them back to work as soon as practicable.
Don’t lose sleep over the FMLA and the ADA! Remember that they are simply two acts with the purpose of providing leave and other protections to employees when they are medically unable to perform all of their regular job duties.