The ADA and Employee Leave Protections
Author: Wendy Taormina-Weiss : Contact: Disabled World
Published: 2012-09-17 : (Rev. 2019-02-14)
Synopsis and Key Points:
Leave is a form of reasonable accommodation that enables an employee to take time off work then return to work and perform the essential functions of their job.
Employers are required to provide needed and reasonable accommodations under the Americans with Disabilities Act (ADA) unless doing so would impose an, "undue hardship," on the employer. Title I of the ADA, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), provides protection to qualified people with disabilities from discrimination on the basis of disability. A, "reasonable accommodation," in relation to employment involves a change in a person's workplace that enables them to perform the essential functions of their job.
Employee Leave ProtectionThe FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to: Twelve work weeks of leave in a 12-month period for: the birth of a child and to care for the newborn child within one year of birth; the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; to care for the employee's spouse, child, or parent who has a serious health condition; a serious health condition that makes the employee unable to perform the essential functions of his or her job; any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on "covered active duty;" or Twenty-six work weeks of leave during a single 12-month period to care for a covered service-member with a serious injury or illness if the eligible employee is the service-member's spouse, son, daughter, parent, or next of kin (military caregiver leave).
Leave is a form of reasonable accommodation, one that enables an employee to take time off from work to take care of whatever required them to take the leave and then return to work and perform the essential functions of their job. In some instances, leave on a short-term, long-term, or even an hourly basis will be the only effective accommodation for the person with a disability. At other times, leave might be an efficient accommodation, although there may also be additional successful ones that allow the person to remain on their job. Under the ADA the person's employer, preferably along with the person who is requesting an accommodation, will make the final decision about which effective and reasonable accommodation will be provided.
Overlapping Coverage Between the ADA and the FMLA
Private employers who have more than fifty employees and are covered by both the ADA and the Family Medical Leave Act (FMLA) have overlapping coverage between the two types of leave. Local and state government employers are covered by both the ADA and FMLA, despite the number of employees they have. People with disabilities who are qualified and covered under the ADA also have to meet the qualification requirements of the FMLA of at least twelve months of total employment and at least 1,250 work hours in the past twelve months to be eligible for FMLA leave.
The definition of a, 'Serious Health Condition,' is not necessarily the same under the ADA as it is under FMLA. An ADA disability is an impairment that substantially limits one or more of a person's major life activities, a record of such an impairment, or being regarded as having such an impairment. While some FMLA serious health conditions such as heart disease, most forms of cancer, or serious strokes would also most likely be ADA forms of disabilities, other conditions such as an appendectomy, pregnancy, or a broken arm would usually not meet the ADA definition of a disability. If a person has a record of a serious health condition it may or may not qualify as a disability under the ADA. Just because a person's employer is aware that they have a serious health condition does not mean the employer necessarily regards them as a person with disabilities under the ADA.
FMLA Certification Inquiries and the ADA
FMLA certification inquiries are permissible under the ADA. When a person asks for leave under the FMLA for a serious health condition, their employer will not violate the ADA by asking for information that is specified in their FMLA certification form. The person's employer does have a right to know why they are requesting time off under the FMLA when they would otherwise be working. The person's employer must keep their inquiry consistent with business necessity and job-related under the ADA. The person's employer can also keep a single medical file containing their ADA and FMLA information, although the file has to be kept separate from their regular personnel file and meet the ADA's confidentiality standards.
A Comparison of ADA and FMLA Leave
The FMLA allows a maximum of twelve workweeks of unpaid leave during a twelve-month period of time, except in the case of the twenty-six workweeks of unpaid leave that is available to provide care for veterans. People with a qualifying form of disability may be entitled to more than the number of weeks of unpaid leave available under the FMLA as a form of reasonable accommodation under the ADA if the leave would not impose an, 'undue hardship,' on the employer's business. The FMLA allows a person to take leave in the form of a reduced work schedule or intermittently, such as a three-day week instead of a five-day one until their leave is finished. The FMLA also allows an employer to require their employee to transfer to another job that has equivalent benefits and pay while their leave is being used if needed.
Under the ADA, a person with a disability may work on a part-time basis, or take occasional time off, as long as it does not impose an, 'undue hardship,' on their employer. If a person with disabilities and their leave does impose an, 'undue hardship,' at some point on their employer, their employer has to attempt to reassign them to a vacant and equivalent position. As a last resort, the person's employer must attempt to reassign them to a lower position so their leave or reduced schedule may be continued. An employer and the employee with disabilities are always free to agree on a voluntary transfer to a different position if both agree it is preferable where accommodating the person and their position are concerned. It is important for employers to bear in mind that a person with a disability who is using FMLA leave to work reduced hours might also require a reasonable accommodation such as certain equipment under the ADA in order to perform the essential functions of their job.
Keeping an Employee on the Job
Under the ADA, an employer has the opportunity to offer an employee with disabilities a reasonable accommodation other than requested leave, as long as the accommodation is effective. For example, the person's employer might offer them the opportunity to work reduced hours in their current job position, certain equipment, or a temporary assignment instead of complete leave if the accommodations are effective. If the employee with disabilities is eligible for FMLA leave and has a form of serious health condition; however, that prevents them from performing the essential functions of their job - the employee has the right to take leave, even if they could continue working with a reasonable accommodation. Even though the FMLA does not prevent an employee from accepting an alternative to taking leave, the employee's acceptance must be un-coerced and voluntary.
Returning an Employee with Disabilities to Work
Under the ADA, employees with disabilities are entitled to return to the same job they held unless their employer can demonstrate that holding the job open would impose an, 'undue hardship.' If the person's employer can demonstrate this, the employee may be reassigned to another position with equal benefits and pay. Reassignment would also need to be attempted by the person's employer if, upon returning to work, the person is no longer able to perform the essential function of their original position, even with reasonable accommodations.
Under the FMLA; however, a person may be returned to the same or an equivalent job position. What this means is the job may be virtually the same in terms of benefits, pay, and additional employment conditions and terms. If the employee is unable to perform the essential functions of their job or an equivalent position, the FMLA does not require their employer to reassign them to another job.
Where insurance coverage is concerned, under the ADA an employer must continue health insurance coverage for an employee with disabilities who is taking leave or working on a part-time basis only if the employer also provides coverage for other employees with the same leave or part-time status. Under the FMLA, employers always have to maintain an employee's existing level of insurance coverage under a group health plan during their FMLA leave, provided the employee pays their share of the premiums. Additional benefits, such as disability or life insurance, must also be provided to the person who is taking FMLA leave if the benefits are provided to other employees in the same leave or part-time status.
Compliance with the FMLA and the ADA
Should an employee request time off for a reason that is related or even potentially related to disability, such as requesting several weeks off to receive treatment for a spine issue, an employer should consider the employee's request for ADA reasonable accommodation as well as FMLA leave. If the employee makes it clear that they only want FMLA leave; however, the person's employer should not make additional inquiries about ADA coverage. When both the ADA and FMLA apply to an employee's medical leave, the FMLA rule states that an employer has to provide their employee with the greatest rights available under either statute.
For example; a qualified person with a disability who is also an eligible employee and is entitled to FMLA leave requests several weeks of medical leave as a form of reasonable accommodation and the employer grants it because it is not an undue hardship. The employer advises their employee that several weeks of leave are also being designated as FMLA leave and counts towards the employee's FMLA leave. The designation does not prevent either of them from treating the leave as a form of reasonable accommodation. The person's employer should reinstate them into the same job they held after they return to work because it is their right under the ADA and is a greater right than the one promised under the FMLA. The FMLA also requires the person's employer to maintain their group health plan coverage while they are on leave and is a greater right available to the person.
The FMLA requires employers to grant leave for employees to provide care for their spouse, parent, or child with a serious health condition as well. In contrast, the ADA's reasonable accommodation requirement does not extend to granting time off to provide care for a family member who experiences a form of disability. When an employer chooses to offer family leave as a type of employee benefit, the employer also has to provide the leave in a manner that is not discriminatory.
- 1 - Celebration of ADA 30th Anniversary All Year Long : Agency Office of Disability Employment Policy (2020/01/06)
- 2 - The Americans with Disabilities Act and Prison Conditions : Thomas C. Weiss (2013/08/04)
- 3 - Americans with Disabilities Act: ADA Faqs : U.S. ADA (2009/01/04)
- 4 - ADA Title II: Public Transportation Information : U.S. Department of Justice (2009/01/04)
- 5 - Administration for Community Living (ACL) : Secretary Sebelius (2012/07/31)
- 6 - Child Welfare Systems Under ADA and Section 504 : Departments of Justice and Health and Human Services (2015/08/20)
- 7 - ADA Title IV: Telecommunications Relay Services : U.S. Department of Justice (2009/01/04)
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