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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.
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?
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.
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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Personnel
Policy Service, Inc.
