Mixing the Americans with Disabilities Act and the Family Medical Leave Act can result in a smorgasbord of legal issues for many employers.  While determining whether an employee has a qualifying serious health condition under the FMLA is, in large part, fairly straightforward given the FMLA’s certification requirements and detailed regulations, deciding whether the employee is also a qualified individual with a disability under the ADA can be more challenging. 

The FMLA/ADA Interplay

An employee with an FMLA-qualifying serious health condition is not necessarily a qualified individual with a disability under the ADA.  A serious health condition is an illness, injury, impairment or physical or mental condition involving inpatient care or continuing treatment by a healthcare provider.  An ADA-qualifying disability is defined, in pertinent part, as an impairment that substantially limits one or more major life activities.  In some cases, but not all, an employee’s serious health condition also constitutes a disability under the ADA.  Pregnancy and broken bones may be serious health conditions, for example, but they generally do not amount to an ADA disability.

This interplay frequently arises when an employee is not yet FMLA eligible and requires leave as a result of a disability, or in the event that an employee who has a serious health condition and has exhausted his or her 12 weeks of FMLA leave requires more leave because of a serious health condition that also constitutes a disability under the ADA.  It may seem, at first blush, that employees in either situation may face lawful termination given the lack of initial or continued protection under the FMLA, especially if the employer maintains a no-fault leave policy where employees face automatic termination after they exceed a set amount of leave.  However, if the employee is a qualified individual with a disability under the ADA, such a termination is likely unlawful.  This is because leave time in both instances may constitute a reasonable accommodation under the ADA if necessitated by an employee’s disability.  The same is true for part-time or modified work schedules.  Unless the leave would cause undue hardship, which is very difficult to prove, the ADA mandates that employers grant it as a reasonable accommodation to qualified individuals with disabilities.  Leave as a reasonable accommodation under the ADA is not limited to 12 weeks.  Although there is no bright-line cutoff for how much leave is reasonable, courts appear to agree that up to a year of leave time, and sometimes more, can be legitimate.

The interplay may also arise in instances in which an employee has taken FMLA leave and requested a reasonable accommodation in the form of a transfer under the ADA upon return from leave.  This was at issue in Adams v. Arundel County Public Schools, a Fourth Circuit case decided earlier this year.  Although the returning employee’s physician emphasized that, upon his return, the employee must be reassigned to another location, the employee subsequently sued the employer claiming, in part, FMLA retaliation in light of the transfer.  In granting the employer’s motion for summary judgment, the Fourth Circuit noted that, by transferring the employee as recommended by his physician at the conclusion of the FMLA leave, the employer “essentially fashioned an accommodation for his disability.”   

Do Not Delay in Considering the ADA

Many employers only consider the FMLA initially when responding to an employee’s request for medical-related leave.  This can create both practical and legal problems.  For example, when an employee has or is about to exhaust the available 12 weeks of FMLA leave, an employer may find itself in a position where it is forced to grant additional unpaid leave to an employee while it considers and obtains documentation regarding the disability and works through the ADA’s reasonable accommodation process.  The FMLA certification form is designed to elicit information about whether an employee has a serious health condition, not whether that condition may also constitute a disability under the ADA.  Nor does it prompt information pertaining to potential reasonable accommodations.  According to the Equal Employment Opportunity Commission, when an employee requests time off for medical treatment, employers should consider such a request under both the FMLA and the ADA if it is possibly or actually related to a disability, unless the employee states that the leave request is only made pursuant to the FMLA.  Where both the ADA and FMLA apply to an employee’s leave request, employers must afford leave under the law that provides the greater rights to employees.

Key Differences in the ADA and FMLA

The ADA and FMLA differ in other important respects, including:

• While the FMLA applies to employers who have 50 or more employees within a 75-mile radius, the ADA applies to employers with as few as 15 employees.
• To be a qualified individual with a disability protected by the ADA, an employee does not have to satisfy the eligibility requirements under the FMLA, including, without limitation, length of service requirements.
• A documentation request from the employer to the employee under the FMLA to verify a serious health condition generally is in the form of a certification.  Employers seeking documentation of a disability under the ADA may only require an employee to provide documentation that is sufficient to substantiate the existence of the employee’s ADA-qualifying disability and need for the reasonable accommodation requested.
• While the FMLA caps the amount of intermittent leave time available to an employee (12 weeks in a 12-month period), the ADA requires that, absent undue hardship, an employer consider and, potentially, allow a disabled individual to work part-time in his or her current position or take occasional time off.
• Under the ADA, the employer is generally required to return employees to the same position upon their return from leave.  Under the FMLA, an employee is entitled to return to either the same or to an equivalent position.
• While the FMLA generally requires that employers maintain an employee’s health insurance benefits during the pendency of leave, the ADA only requires that employers do so in the event they provide coverage for employees on other types of leave. 

In Conclusion

Although their plate may already be full, employers who want to avoid substantial liability should enhance their familiarity with the ADA and FMLA and their compliance rules.