FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics

by Stoel Rives LLP

After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or the thorny challenges presented by the interplay of all three laws. (Unlike FMLA and OFLA, the ADA was not specifically enacted for the purpose of providing leave per se. In fact, EEOC Commissioner Chai Feldblum has referred to the ADA as “an inadvertent leave law.”) 

This post gives an overview of specific practical tips on how to address some of the stickier leave issues related to specific situations that can arise.  (Shameless self-promotional plug:  these and other topics were covered in depth at a Stoel Rives Breakfast Briefing Seminar.  For details on other Stoel Rives seminars and breakfast briefings, click here.)

Situation No. 1.  Intermittent leave -  taken by employee in separate intervals for particular qualifying long-term or recurrent health issue

How to handle?

  • Always require the certification of the health care provider (“CHCP”) for FMLA/OFLA intermittent leave; where the need for leave is not obvious, also require medical info for ADA accommodation leave
  • The CHCP can be an employer’s most effective tool for ensuring proper compliance with OFLA and FMLA. The employer needs to carefully scrutinize the CHCP and monitor it for:
    • Timely return (employee has 15 days to return)
    • Completeness/need for follow-up or clarification (employer must notify employee in writing of deficiency, and employee has seven days to cure after notice of deficiency)
    • The need to obtain 2nd or 3rd opinion if the employer disagrees with the HCP's determination
    • Duration/expiration and the right to obtain an updated certification (employer has right to require new certification upon expiration of the existing CHCP or upon change of circumstances)
  • The employer should ensure the employee’s absence pattern is consistent with CHCP or ADA medical certification
  • Consider temporary transfer of employee to a position that is more suited to the employee’s intermittent leaves (requires the employee’s agreement)

Situation No. 2.  Retroactive leave designation – occurs when past absence(s) should have been designated as protected OFLA/FMLA leave, but was not

  •  Why designate retroactively?
    • Benefit to employer: reduces available leave bank and prevents “hoarding”
    • Benefit to employee: absences are protected
  •  How to accomplish?
    • Going forward, make sure managers are trained to recognize potential OFLA/FMLA-covered absences/tardies
    • Retroactive designation allowed upon agreement by employee (29 CFR §825.301(d))
    • Give employee notice of eligibility, rights, responsibilities; obtain CHCP
    • After employee returns CHCP, go through dates of employee’s absences and determine which are serious health conditions (“SHCs”) (see SHCs described in 29 CFR §§825.113, 114 and 115) based on what employee reported to you as reason for absence compared to CHCP info

Situation No. 3.  Job preservation obligations – employee is off work for extended time and employer wants to fill position


How to handle?

  •  Under OFLA – employee’s job protected through duration of OFLA leave; upon return, employee must be restored to same position if it exists or to available equivalent position if it does not
  • Under FMLA – employee’s job protected through duration of leave; employee must be restored to same or equivalent position (with exception for “key employee” only if leave not also covered by OFLA; not likely to apply in vast majority of situations in Oregon)
  • Under ADA – must hold employee’s job, unless doing so presents “undue hardship”; even with undue hardship, must still consider employee for equivalent position, then lesser position
    • In Ninth Circuit, even “indefinite leave” may still be reasonable accommodation, despite EEOC’s position to contrary and new employer-friendly Ninth Circuit case law
  • Therefore, if OFLA/FMLA leave is exhausted and employee is still not ready to return to work, before replacing employee the employer should conduct a basic ADA analysis to determine whether ADA applies and whether extended leave is a reasonable accommodation or whether it presents employer with undue hardship

Situation No. 4. Employee’s medical condition is “debatable” – occurs when employer questions whether a condition is either a SHC or a disability under ADA

How to handle?

  • For FMLA/OFLA, must do SHC analysis (see SHC described in 29 CFR §§825.113, 114 and 115)
  • If employee’s health care provider appears to “rubber stamp” employee’s purported condition, require second opinion (at employer’s expense)

Situation No. 5. Employee has worked only short time – employee is not eligible for OFLA/FMLA because too new, but has reported medical condition and requests leave


 How to handle?

  • Simple (and critical) – do basic ADA analysis to determine whether employee is entitled to leave as an accommodation under the ADA

Situation No. 6.  Untimely notice by employee – employee does not notify of need for leave within statutory time periods


 How to handle?

  • If OFLA only applies, and employee did not give 30 days’ or as much advance notice as possible of foreseeable leave, or notice within three days of returning to work of unforeseeable leave, employer can reduce employee’s leave by the number of days (up to three weeks) employee failed to provide timely notice (OAR 839-009-0250(4)(a))
  • If FMLA only applies, employer may delay or deny leave due to improper notice (29 CFR §825.304)
  • If both OFLA and FMLA apply, employer may discipline employee under uniformly applied policies, but cannot delay or deny the leave
  • There is no statutory time period involved for requesting leave as an ADA accommodation, although an employer may deny leave to employee who has not provided requested adequate medical supporting documentation when the need for leave is not obvious

Although the six situations outlined above require a “beyond the basics” individual approach and analysis, in each of them the employer should: 1) Always maintain open and timely communication with the employee; and 2) Follow a process that considers both the requirements of the family and medical leave laws and the ADA, when applicable.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Stoel Rives LLP | Attorney Advertising

Written by:

Stoel Rives LLP

Stoel Rives LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.