FMLA? Don’t forget the ADA…..

Don’t run the risk of failing to consider the ADA (Americans with Disability Act) after FMLA (Family Medical Leave Act) rights have expired. You already know the answer to the following questions, if not you will soon!

True or False: “Once my employee has exhausted his FMLA leave but has not returned to work, I can terminate his employment or at a minimum, he has lost his right to job protected leave. FALSE
Providing 12 weeks of FMLA may only be the starting point in satisfying your obligation as an employer, to accommodate under ADA. Most employers assume if they give an employee 12 weeks of leave to comply with the FMLA, their obligation to the employee is finished. Not so fast…..if the employee also is disabled, an employer’s responsibilities under the ADA might begin.

Disabled at Work

The ADA applies to employers with 15 or more employees, and the FMLA applies to private employers with 50 or more employees and to all public agencies and schools. Therefore, if it is covered by the FMLA, the employer generally also will be covered by the ADA and must comply with both laws.

These laws have different purposes, but both can affect an employee’s need for leave. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of job-protected leave every year for various reasons. In particular, an eligible employee can take a leave if he is unable to work because of a serious health condition. On the other hand, the ADA prohibits discrimination against qualified disabled individuals and requires employers to provide accommodations that allow these individuals to perform the essential functions of their jobs.

As a practical matter, these laws will overlap when an employee takes a leave of absence for a FMLA serious health condition that also qualifies as a disability under the ADA. Back to our example above, if an employee who has been on FMLA leave for 12 weeks cannot return to work because of a continuing serious health condition, the condition also may be a disability. Therefore, the employer may be required to accommodate the employee by granting additional leave beyond the 12 weeks of FMLA.

I know you are already ahead of me if you are wondering about the situation being reversed. If an employee requests a 6-week leave as an accommodation to seek treatment for a disability, that time off could also be counted as FMLA leave for a serious health condition if the employee meets the FMLA eligibility requirements. Running DAD and FMLA concurrently is tricky, so be sure you consult your Human Resources professional or Legal Counsel.

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PPS Inc. & EE Staff

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