How do employers' FMLA obligations coordinate with their obligations under the ADA?

Private employers with 50 or more employees are covered concurrently by the Family and Medical Leave Act of 1993 (FMLA) and the Americans with Disabilities Act of 1990 (ADA). So are state and local government employers with 15 or more employees. These employers have varying obligations under the two laws that can be overlapping and a source of confusion. The following questions are designed to help employers sort out their varying obligations under these laws.

What is the relationship between the requirements of the FMLA and the ADA? The FMLA and the ADA both require a covered employer to grant medical leave to an employee in certain circumstances

Who enforces these laws? The Department of Labor enforces the FMLA. The Equal Employment Opportunity Commission enforced the ADA, but has no enforcement responsibility for the FMLA.

Are all employees who are protected by the ADA also entitled to leave under the FMLA? No. Employees protected by the ADA must be independently eligible for FMLA leave. Eligibility for FMLA leave depends on several factors, for example, length of service. In addition, an individual must be employed by an FMLA-covered employer with 50 or more employees to obtain FMLA leave.

Is an FMLA serious health condition the same as an ADA disability? No. An FMLA serious health condition is not necessarily an ADA disability. An ADA disability is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.

Some FMLA serious health conditions may be ADA disabilities, for example, most cancers and serious strokes. Other serious health conditions may not be ADA disabilities, for example, pregnancy or a routine broken leg or hernia. This is because the condition is not an impairment (e.g., pregnancy), or because the impairment is not substantially limiting (e.g., a routine broken leg or hernia).

In addition, the fact that an individual has a record of a serious health condition does not necessarily mean that s/he has a record of an ADA disability. Under the ADA, an individual must have a record of a substantially limiting impairment in order to be covered.

Finally, just because someone has a serious health condition also does not mean that the employer regards him/her as having an ADA disability. To satisfy this prong of the ADA definition of disability, the employer must treat the individual as having an impairment that substantially limits one or more major life activities.

To determine if an individual has an ADA disability, all pertinent evidence, including any information about whether the individual has or had a serious health condition, should be considered. Under the FMLA regulations, employers must allow EEOC investigators to review pertinent FMLA medical certifications and recertifications, and other relevant materials, upon request.

Is there a conflict between the FMLA provision allowing employers to ask for certification that an employee has a serious health condition and ADA restrictions on disability-related inquiries of employees? No. When an employee requests leave under the FMLA for a serious health condition, employers will not violate the ADA by asking for the information specified in the FMLA certification form. The FMLA form only requests information relating to the particular serious health condition, as defined in the FMLA, for which the employee is seeking leave. An employer is entitled to know why an employee, who otherwise should be at work, is requesting time off under the FMLA. If the inquiries are strictly limited in this fashion, they would be job-related and consistent with business necessity under the ADA.

May an employer keep a single confidential medical file for each employee, separate from the usual personnel file, for medical documentation under both the ADA and the FMLA? Yes. An employer may keep a single confidential medical file, separate from the usual personnel file, containing both FMLA and ADA medical information if the employer follows the ADA confidentiality standards. This includes following the ADA interpretations of those confidentiality exceptions that are set forth in both the ADA and the FMLA regulations. For example, employers may not give supervisors and managers unlimited access to the medical files. However, employers may give supervisors and managers information concerning necessary work restrictions and accommodations.

Does the FMLA's limit of 12 workweeks of leave in a 12- month period mean that the ADA also limits employees to 12 weeks of leave per year? No. The FMLA does not mean that more than 12 weeks of unpaid leave automatically imposes an undue hardship for purposes of the ADA. An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer's business. To evaluate whether additional leave would impose an undue hardship, the employer may consider the impact on its operations caused by the employee's initial 12-week absence, along with the undue hardship factors specified in the ADA.

How do the ADA and the FMLA requirements compare regarding intermittent or occasional leave? Under the ADA, a qualified individual with a disability may work part-time in his/her current position, or occasionally take time off, as a reasonable accommodation if it would not impose an undue hardship on the employer. If (or when) reduced hours create an undue hardship in the current position, the employer must see if there is a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship while working a reduced schedule. If an equivalent position is not available, the employer must look for a vacant position at a lower level for which the employee is qualified. Continued accommodation is not required if a vacant position at a lower level is also unavailable.

The ADA does not prohibit an employer and an employee from agreeing on another mutually acceptable accommodation. For example, an employer and employee may agree to a transfer, on either a temporary or a permanent basis, if both parties believe that such a transfer is preferable to accommodating the employee in his/her current position.

Under the FMLA, an eligible employee may take leave intermittently or on a part-time basis for his or her own serious health condition when medically necessary for treatment or recovery, until s/he has used up the equivalent of 12 workweeks in a 12-month period. When such leave is foreseeable based on planned medical treatment, an employer may require the employee to temporarily transfer (for the duration of the leave) to an available alternative position for which the employee is qualified and which better suits his/her reduced hours.

What are employees' reinstatement rights under the ADA and the FMLA? Under the ADA, the employee is entitled to return to the same job unless the employer demonstrates that holding the job open would impose an undue hardship.

In some instances, an employee may request more leave under the ADA even after the employer has communicated that it cannot hold the employee's job open any longer (i.e., there is undue hardship). In this situation, the ADA-covered employer must see if it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship to continue his/her leave. If an equivalent position is not available, the employer must look for a vacant position at a lower level. Continued accommodation is not required if a vacant position at a lower level is also unavailable.

In other instances, an employer may hold the original position open, and the employee may want to return to work, but may be unable to perform an essential function of the original position even with reasonable accommodation. Under the ADA, the employer must then consider reassignment, first to a vacant equivalent position for which the individual is qualified and, if one is unavailable, to a vacant position at a lower level. Further accommodation is not required if a vacant position at a lower level is also unavailable.

Under the FMLA, an employee is entitled to return to the same position or to an equivalent position. However, if an employee is unable to perform an essential function of the same or equivalent position because of a physical or mental condition, the FMLA does not require the employer to reinstate the employee into another job.

Do the ADA and the FMLA require an employer to continue an employee's health insurance coverage during medical leave? Under the ADA, an employer must continue health insurance coverage for an employee taking leave or working part-time only if the employer also provides coverage for other employees in the same leave or part-time status. The coverage must be on the same terms normally provided to those in the same leave or part-time status.

Under the FMLA, an employer always must maintain the employee's existing level of coverage (including family or dependent coverage) under a group health plan during the period of FMLA leave, provided the employee pays his or her share of the premium. An employer may not discriminate against an employee using FMLA leave, and therefore must also provide such an employee with the same benefits (e.g., life or disability insurance) normally provided to an employee in the same leave or part-time status.

If an individual requests time off for medical treatment, should the employer treat this as a request for FMLA leave and ADA reasonable accommodation? If an employee requests time off for a reason related or possibly related to a disability (e.g., I need six weeks off to get treatment for a back problem), the employer should consider this a request for ADA reasonable accommodation as well as FMLA leave. The employer may require FMLA certification and may make additional disability-related inquiries if necessary to decide whether the employee is entitled to reasonable accommodation because s/he also has a covered disability. However, if the employee states that s/he only wants to invoke rights under the FMLA, the employer should not make additional inquiries related to ADA coverage.

When both the ADA and the FMLA apply, how should the employer determine which terms and conditions govern the employee's initial 12 weeks of medical leave? Under the FMLA rule, an employer must provide leave under whichever statutory provision provides the greater rights to employees

As an alternative to a leave of absence, may an employer offer an effective reasonable accommodation that will enable an employee to continue working? An employer may offer an employee a reasonable accommodation other than the leave s/he requested under the ADA, as long as it is effective. For example, an employer may offer an assistive device, an opportunity to work reduced hours in the employee's current job, or a temporary assignment to another job, if these are effective accommodations.

However, if the individual is eligible for leave under the FMLA and has a serious health condition that prevents him/her from performing an essential job function, s/he has the right to take a leave of absence of up to 12 workweeks in 12 months, even if s/he could continue working with an effective reasonable accommodation. While the FMLA does not prevent an employee from accepting an alternative to leave, the acceptance must be voluntary and uncoerced.

Does the ADA require an employer to give an employee time off to care for a spouse, son, daughter, parent or other individual with a disability? The ADA's reasonable accommodation obligation does not require a covered employer to give an employee time off to care for a spouse, son, daughter, parent or other individual with a disability with whom the employee has a relationship. However, an employer would be required to provide leave on the same terms as it normally provides leave to employees who need to care for someone who is ill.