This article was originally published in The Daily Record March 3, 2016.
A couple of months ago a new client called wanting an explanation of the Family and Medical Leave Act (“FMLA”), did it applied to her small business, and if so, how to handle an employee’s request for leave. Knowing that the client has at least 50 employees all located within a 75 mile radius, I explained that the FMLA provides up to 12 workweeks of unpaid leave (26 weeks for military caregivers), benefits protection, and job reinstatement to eligible employees who experience an FMLA-qualifying event or condition. Based on the situation, the remainder of our discussion focused primarily on leave for an employee’s own serious health condition.
After assisting the client with the process and noting the services in our client management system, including the medical provider’s expectation that the employee (Jennifer) would be out for 12 consecutive workweeks, I scheduled a follow up call for last week. The conversation went something like this; “Frank, I’m glad you called. Jennifer’s 12 weeks of FMLA leave end on March 3rd, and her doctor said she can’t return to work for at least another month…so we can fire her on March 4th, right?” I can’t publish the client’s response after I said, “probably not.”
As I said earlier, Jennifer’s FMLA leave is for her own serious health condition (as opposed to leave to care for a parent, spouse, or child with a serious health condition). Therefore, her employer has two important responsibilities: (1) ensure Jennifer receives all the job-protected leave she is entitled to under the FMLA; and (2) comply with the obligations set forth under the Americans with Disabilities Act (“ADA”). Although most employers understand that the FMLA and ADA have important yet fundamentally different purposes, they often fail to recognize the often unavoidable overlap of the two laws, as is the case with Jennifer’s situation.
Under the ADA, it is unlawful for an employer to discriminate against any employee because of a disability. Further, it may be necessary for the employer to provide a reasonable accommodation to an employee with a disability, unless doing so creates an undue hardship. To determine if a reasonable accommodation is called for, the employer is obligated to engage the employee in an interactive process or dialogue.
While the FMLA – ADA overlap has existed for years, it has received increased attention from HR professionals, plaintiffs’ attorneys, and the federal agencies responsible for the enforcement of both laws since passage of the ADA Amendments Act in 2008. These amendments significantly expanded the definition of disability, making many more employees eligible for ADA protections, regardless of whether they have rights under the FMLA. The FMLA and ADA intersect, and trigger employer obligations under each law, when an employee’s medical condition qualifies both as a serious health condition under the FMLA and a disability under the ADA. Consequently, when an employee qualifies for leave under the FMLA, the employer should also be aware that at some point accommodation may also be necessary under the ADA.
Several Court rulings, and the ADA regulations serve to reinforce the fact that an employer may be required to consider various types of reasonable accommodations. Returning to my client’s situation, with Jennifer soon exhausting the 12 workweeks of protected FMLA leave, her doctor provide documentation that indicates she will be able to return to work, without restrictions, on April 4th. With the release in hand, Jennifer requests the additional month of leave. The next steps for the employer are to discuss this request with Jennifer, and then evaluate whether providing the additional leave is a reasonable accommodation under the ADA or an undue hardship for the company. Because Jennifer’s 12-week absence has created little more than an inconvenience for her co-workers and the company, the additional leave is likely a reasonable accommodation.
Let’s take a look at some other common issues employers face at the intersection of FMLA and ADA. After exhausting his FMLA leave for the treatment and recovery related to a serious medical condition, Alphonse provides documentation that indicates he is able to return to work immediately, but with some restrictions which are expected to continue for approximately two months. Based on the restrictions, Alphonse requests a reduced work schedule of six hours per day for the next eight weeks. As with our previous example, the employer should discuss this request with Alphonse, and then evaluate whether providing the reduced work schedule is a reasonable accommodation under the ADA or an undue hardship for the company.
Brooke has worked for her employer for five months. Over the weekend she was involved in a traffic accident while on her way to meet a friend for coffee. As a result of the accident she will need surgery and approximately four weeks for recovery before she is able to work. Brooke is not eligible for FMLA leave, and her employer’s leave policy states that, except for FMLA leave, employees who take time off without enough accrued paid time off to cover the absence will be terminated. Under these circumstances, the employer should still discuss the requested leave with Brooke, and then evaluate whether providing the leave is a reasonable accommodation under the ADA or an undue hardship for the company.
As you can see, an employer should begin with an assessment of potential obligations under the FMLA and/or ADA. If obligations exist, the employer should engage the employee in an interactive dialogue, with the goal of identifying one or more reasonable accommodations for the employer to consider. To help jumpstart the process, I’ve provided a few things for employers to consider:
- Do both the FMLA and ADA apply to the employer? This is a critical question, especially for smaller employers. In general terms, the FMLA covers private employers that employ 50 or more employees; public agencies regardless of the number of employees; and public or private elementary or secondary schools regardless of the number of employees. The ADA applies to employers with 15 or more employees, meaning an employer may have obligations to provide reasonable accommodations (such as leave) even when the FMLA does not apply.
- Is the employee eligible for leave and/or reasonable accommodation? To be eligible for FMLA leave, an employee must have worked for the employer for a total of 12 months (not necessarily consecutive), worked a minimum of 1,250 hours in the previous 12-month period, and be employed at a worksite with 50 or more employees within a 75-mile radius. ADA eligibility is very different. The employee only needs to meet the ADA definition of a qualified individual with a disability. A qualified individual is someone who can perform the essential functions of the job, with or without reasonable accommodation. An individual with a disability is a person who has: (a) a physical or mental impairment that substantially limits one or more major life activities; (b) a record of such an impairment; or (c) been regarded as having such an impairment. Further, it’s important to understand that the position of the Equal Employment Opportunity Commission (“EEOC”) is that the employer should not focus on whether the individual has a disability, but rather focus on the obligation to accommodate the individual. With all of that in mind, if the employee is a qualified individual with a disability, he or she is eligible to receive reasonable accommodations from the very first day of employment.
- What type, and what amount of leave is available? The FMLA provides employees with up to 12 workweeks of protected leave for a serious health condition, which may be taken in continuous blocks of time, intermittently, or on a reduced schedule, depending on the employee’s specific needs. Generally, once the employee has exhausted his or her 12 workweeks of FMLA leave, no additional FMLA leave is available during that 12-month period. However, employers should note that an employee may become eligible for FMLA leave while on non-FMLA leave. For example, the employee may reach his or her 12 months of service while out on disability leave. Here, the employee may be eligible for a full 12 workweeks of leave under the FMLA, regardless of how much non-FMLA leave the employee has already received. Under the ADA, any type of leave – continuous blocks of time, intermittent, or a reduced schedule – may be a reasonable accommodation. For that reason, leave under the ADA may be less than, similar to, or even greater than the amount of leave provided under the FMLA.
When considering all that employers need to know about potential obligations under the FMLA and ADA, the information in this article barely scratches the surface. The FMLA and ADA are complex, often overlapping laws. If you have any questions or concerns, or just don’t know what you don’t know, contact an expert. It will be time and money well spent.
Please feel free to contact me at firstname.lastname@example.org, or 585-672-4142, x15 with questions or for more information.
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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