Quirky Question #259, The FMLA and the ADA: Joined at the Hip

Question:

I work in my company’s HR department and we just had an employee ask for additional time off, even though we’ve already given the employee a bunch of time off we are required to under the FMLA.  I wanted to say no but my co-worker here in HR says I have to grant the extra time off.  Who is right?

Answer:  By Marilyn Clark, Bobbi Leonard, and Rebecca Bernhard

Marilyn Clark

Marilyn Clark

Bobbi Leondard

Bobbi Leonard

Rebecca Bernhard

Rebecca Bernhard

Unfortunately, your co-worker may be correct, depending on the employee’s specific medical condition.  While the Family and Medical Leave Act and the Americans with Disabilities Act were designed to serve distinct populations, these laws often interact in complex ways.  In a nutshell, the FMLA requires that covered employers provide eligible employees with a “serious health condition” with 12 weeks of leave, while the ADA requires covered employers to accommodate employees with a “disability,” as defined under the act.  A leave of absence is one type of a reasonable accommodation employers may have to explore to comply with the ADA.  Further, some “serious health conditions” under the FMLA may also be “disabilities” under the ADA, such as most types of cancer or a stroke.   In these circumstances, employers have to be extra vigilant to ensure compliance with both laws.  Below are some key points to keep in mind.

Additional Leave Beyond FMLA

In some circumstances, additional leave beyond what is mandated by the FMLA can be considered a reasonable accommodation under the ADA.  In a recent case involving Children’s Hospital and Research Center, a California court found that an employer’s denial of additional leave after the employee had taken six months of medical leave was a violation of the employee’s rights under the ADA.  At the time she was terminated, the employee, who was recovering from breast cancer treatments and surgeries, had provided notice of her ability to return to work within a few months.  Based on this fact, coupled with the employer’s lack of diligence in researching an alternative accommodation, the court found that the employer had violated the employee’s ADA rights, despite the long-expired exhaustion of her FMLA leave.

Health Insurance Coverage

While the employee is out on leave, the conditions of whether an employee retains her medical coverage require analysis under both statutes.  The ADA provides that employers must continue health care coverage for employees taking leave or working part time so long as the employer provides such coverage for other employees in the same leave or part-time status. Under the FMLA, employers must continue employees’ coverage during the leave, so long as the employee pays his or her share of premiums. Just like with the ADA, the coverage provided to an employee on FMLA leave must be on the same terms normally provided to those in the same leave or part-time status.

Reinstatement Rights

When the employee is ready to return to work, an employer must consider both the ADA and the FMLA, each of which have different reinstatement requirements.  Under the FMLA, employees are entitled to return to the same or equivalent position. Under the ADA, employees are entitled to return to the same job unless the employer can demonstrate that holding the job open would impose an undue hardship.  Even if this is the case, however, the employer may still be required to offer the employee a vacant equivalent position, or, if none is available, a vacant lower position for which the employee is qualified.

If you find yourself in the murky waters of joint ADA and FMLA compliance, proceed with caution.  If you have any questions, be sure to contact an employment attorney.

 

Marilyn Clark

About Marilyn Clark

A partner in the Labor & Employment practice group, Marilyn’s practice consists of both litigation and advice services in a wide range of employment matters. She is also experienced with......

Rebecca Bernhard

About Rebecca Bernhard

Rebecca's experience spans traditional labor and employment, immigration, and federal contract compliance and audits. She supports clients with their corporate transactions, advising on all aspects of labor and employment diligence,......

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