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The FMLA and ADA Puzzle: Putting the Pieces Together   | Download free FMLA checklists and FAQ’s

1. When will both the FMLA and ADA affect a leave?
2. Is a "serious health condition" the same thing as a "disability"?
3. Is a disabled employee always eligible for FMLA leave?
4. Can you require medical certification to determine coverage under the ADA and FMLA?
5. How much total leave do you have to give?
6. Do you have to continue to pay for health insurance during a disability leave?
7. Are the reinstatement requirements different for the ADA and FMLA?
8. What precautions should you take to monitor leaves?

Most employers assume that if they give an employee 12 weeks of leave to comply with the FMLA, their obligation to this employee is finished. However, if the employee also is disabled, the employer’s duty under the ADA may be just beginning. Get your FREE access to this and 100's of FREE HR resources today.

Ask a group of HR professionals to list the toughest aspects of implementing the Family and Medical Leave Act (FMLA), and most will agree that coordinating the law with the Americans with Disabilities Act (ADA) is one of their top challenges. The confusion created by the overlap of the FMLA and the ADA is yet another example of good intentions "gone awry." Congress passed these two laws without considering how they would interact, and the regulatory agencies contributed further to the uncertainty by providing only minimal guidance. As a result, most employers must devise their own rules for applying the sometimes conflicting laws to an employee’s leave of absence. To help fill in the gaps, the Editors have analyzed the FMLA and ADA statutes, regulations, and guidances to answer the most frequently asked questions about these laws. (Many complicated issues also arise concerning the interaction of workers’ compensation and FMLA leave.

1. When will both the FMLA and ADA affect a leave?                                  [Download Free Policies]

The ADA applies to employers with 15 or more employees, and the FMLA applies to private employers with 50 or more employees and to all public agencies and schools. Therefore, if it is covered by the FMLA, the employer generally also will be covered by the ADA and must comply with both laws.

These laws have different purposes, but both can affect an employee’s need for leave. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of job-protected leave every year for various family and medical reasons. In particular, an eligible employee can take a leave if he is unable to work because of a serious health condition. On the other hand, the ADA prohibits discrimination against qualified disabled individuals and requires employers to provide accommodations that allow these individuals to perform the essential functions of their jobs. According to the EEOC and several courts, a leave of absence may be a reasonable accommodation if taking the leave would allow the disabled employee to return to work and perform the essential functions of the job.

As a practical matter, these laws will overlap when an employee takes a leave of absence for a FMLA serious health condition that also qualifies as a disability under the ADA. For example, if an employee who has been on FMLA leave for 12 weeks cannot return to work because of a continuing serious health condition, the condition also may be a disability. Therefore, the employer may have to accommodate him by granting additional leave beyond the 12 weeks of FMLA entitlement. Alternatively, if an employee requests a 6-week leave as an accommodation to seek treatment for a disability, that time off also could be counted as FMLA leave for a serious health condition if the employee meets the FMLA eligibility requirements.

2. Is a "serious health condition" the same thing as a "disability"?

No. The FMLA and its implementing regulations define "serious health condition" broadly to include any illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care (i.e., an overnight stay), including any period of incapacity or any subsequent treatment in connection with the inpatient care; or (2) "continuing treatment" by a health care provider. Thus, the FMLA may cover temporary conditions such as a broken leg, as well as a chronic condition like diabetes.

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The ADA, in contrast, generally is not intended to cover temporary medical conditions. Accordingly, a person is disabled under the ADA only if (1) he has a physical or mental impairment; and (2) that impairment substantially limits a major life activity, such as walking, seeing, hearing, speaking, and breathing. Generally, most disabilities will qualify as serious health conditions under the FMLA. For example, cancer can be both a serious health condition under the FMLA and a disability under the ADA. However, not all serious health conditions will also be disabilities.

3. Is a disabled employee always eligible for FMLA leave?

No. The employee must meet the FMLA’s eligibility requirements. An employee is eligible for FMLA leave if: (1) he has been employed for at least 12 months (not necessarily consecutively); (2) he has worked at least 1,250 hours in the previous consecutive 12-month period; and (3) he works at a work site that is within 75 miles of 50 or more employees. Thus, for instance, an employee who becomes disabled and has worked for only four months will not be eligible for FMLA leave. However, he may be entitled to take leave as an accommodation under the ADA.

4. Can you require medical certification to determine coverage under the ADA and FMLA?

Yes. Both the ADA and the FMLA allow employers to make limited medical inquiries. Under the ADA, you may make medical inquiries or require medical examinations only if the inquiry or examination is job-related and consistent with business necessity. Thus, if the employee requests leave as an accommodation, you may ask for medical documentation of the existence of the disability and the need for the leave.

The FMLA also limits the medical information an employer may require. It allows you to require medical certification of the serious health condition and the need for leave. However, the certification may relate only to the serious health condition that is causing the need for leave. Therefore, you may not require the employee to answer questions about conditions unrelated to the stated reason for the leave.

Thus, if you comply with the FMLA medical certification requirements, you also generally will comply with the ADA’s limits on medical information.

5. How much total leave do you have to give?

The FMLA requires employers to give up to a total of 12 weeks of leave in any 12-month period. However, you may have a continuing obligation under the ADA to provide further leave if the employee also is disabled and the leave is considered a reasonable accommodation. The ADA does not place any specific time limit on the amount of leave a disabled employee may take as a reasonable accommodation. As a general rule, however, these leaves cannot be indefinite.

6. Do you have to continue to pay for health insurance during a disability leave?

If the disabled employee’s leave qualifies as an FMLA leave, the employer must comply with the FMLA’s requirements. Under the FMLA, employers must provide the same health benefits during an FMLA leave that it would have provided if the employee worked throughout the leave. Thus, if the employer pays for health insurance normally, it must continue doing so during the FMLA leave.

If the employee is not covered by the FMLA, the employer does not have to continue to pay for the health insurance. The ADA only requires the employer to give a disabled employee on leave the same benefits it gives any nondisabled employee on leave.

7. Are the reinstatement requirements different for the ADA and FMLA?

Yes. The ADA gives employees greater reinstatement rights. Under the ADA, the employee ordinarily is entitled to reinstatement to the same job since the duty of reasonable accommodation is intended to allow the employee to perform the essential functions of that job. Further, if reinstatement to the same position is an undue hardship for the employer, it may have to reinstate the employee to any available vacant position the employee is qualified to perform. In contrast, the FMLA only requires reinstatement to an equivalent job.

8. What precautions should you take to monitor leaves?

HR professionals can take control of compliance by implementing a system to identify employees who may be covered by both the ADA and the FMLA. To this end, you should: (1) require medical certification for all health-related leaves to determine whether the ADA, FMLA, or both should apply; (2) at the end of a FMLA leave, determine if the employee is disabled under the ADA and entitled to further leave as an accommodation; and (3) evaluate your reinstatement policy to be sure it allows for return to the same job, not just an equivalent job, for employees who have been covered simultaneously by both the ADA and FMLA.

 

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This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.

 
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