A Tale of Two Statutes: Employee Leave Under the FMLA and the ADA
by Susan E. Hannagan and Terah Moxley
On the heels of securing multi-million dollar consent decrees in two suits against nation-wide employers regarding no-fault absence policies, the Equal Employment Opportunity Commission (EEOC) remains focused on these policies as part of its strategic enforcement initiatives. Consequently, employers—and their counsel—must have a working knowledge of two statutes that can overlap when employees need leave due to personal health issues—the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
The FMLA applies to private employers with 50 or more employees and allows eligible employees to take up to 12 weeks of leave per year for their own “serious medical condition,” among other things. The ADA applies to private employers with 15 or more employees and requires employers to provide reasonable accommodations to qualified individuals with “disabilities.” In certain circumstances, leave can be a reasonable accommodation under the ADA. When an employee needs leave due to a personal health condition, employers covered by both the FMLA and the ADA need to consider both statutes.
For example, Company has 100 employees, meaning both the FMLA and the ADA apply. Edward Employee, a qualified individual under the ADA, meets the eligibility requirements of the FMLA. One day, Edward tells Company he needs 14 weeks off work for personal health reasons. How should Company proceed?
Both statutes provide methods for Company to evaluate the nature of Edward’s health condition. Under the FMLA, Company can require Edward to submit a medical certification from a healthcare provider. However, Company can only make medical-related inquiries that are job-related and consistent with business necessity under the ADA. Let us assume this process leads to the conclusion that Edward’s health condition is both a “serious medical condition” under the FMLA and a “disability” under the ADA. What now?
Due to his FMLA eligibility, Edward automatically qualifies for 12 weeks of leave. And since leave can be a reasonable accommodation under the ADA, Company should probably give Edward the additional two weeks of leave he needs unless this would cause Company an undue hardship. (It is always the employer’s burden to prove undue hardship under the ADA, and financial hardships rarely suffice.) Thus, in most circumstances the reasonable accommodation requirements of the ADA will prohibit Company from terminating Edward’s employment upon the exhaustion of his FMLA leave. In addition, because Company is covered by both laws, it should examine its leave policies in light of its ADA obligations. Policies that provide for automatic termination after employees miss a specified amount of work—known as no-fault absence policies—are enticing fodder for the EEOC and should include exceptions for ADA and FMLA leave.
Analyzing Edward’s need for leave under both the FMLA and the ADA at the outset is important because it impacts the job Company must leave open for Edward and outlines the return-to-work process once Edward’s leave ends.
First, leave under both acts is job-protected leave. However, under the FMLA, Company can return Edward either to the same job he held when his leave commenced or to an equivalent one. However, according to the EEOC’s interpretation, the ADA requires Company to return Edward to the same job unless this would cause an undue hardship. Only then could Company consider returning Edward to an equivalent position.
Next, when Edward returns to work, the FMLA and ADA call for different procedures. Under the FMLA, Company can usually only require Edward to submit a return-to-work certification from a healthcare provider if such a requirement is listed in its policies and if Company told Edward such a certification would be required when designating his leave as FMLA leave. By contrast, the ADA allows Company to send Edward for a fitness-for-duty exam if it has a reasonable belief that Edward’s present ability to perform his essential job functions are impaired by his medical condition and if the exam is job-related and consistent with business necessity.
In sum, while the overlap of the FMLA and the ADA can cause headaches for even the most sophisticated employers, analyzing the requirements of both at the outset of any medical-related leave can help the process proceed smoothly. Additionally, maintaining an informal dialogue with employees throughout such leave, as encouraged by the EEOC, can help ensure that all parties have a good grasp on the situation and an understanding of each party’s expectations and requirements.