ADA & Disabilities, Leave Management, Policy, and Compliance

Coordinating FMLA with the Americans with Disabilities Act, Part 1

In this article series, we’ll focus on the intersection of the Family and Medical Leave Act (FMLA) and how it affects many other laws, including the Americans with Disabilities Act (ADA), workers’ comp, and other state laws that apply to medical or disability leaves. Additionally, the FMLA may intersect with a variety of employer-provided leaves and policies, including those for short- or long-term disabilities. It does not supersede any provision of any state or local law that provides greater family or medical leave rights.   FMLA

As a general rule, when the FMLA overlaps with other laws, the employer must follow the law that gives the employee the greatest benefits or is most favorable to the employee. In addition, if a collective bargaining agreement or your own policy gives employees greater benefits than the FMLA, then follow it as well.

Americans with Disabilities Act

The ADA prohibits discrimination against a qualified individual with a disability. Because it applies to employers that have at least 15 employees, employers that are covered by the FMLA are also covered by the ADA. In addition, employees who suffer from a serious health condition under the FMLA may have a disability under the ADA. When that happens, the employer must afford the employee the full protection of both laws.

The ADA requires employers to provide a “reasonable accommodation” to a qualified employee or job applicant who has a disability. A reasonable accommodation is a change or adjustment that will allow an employee to perform essential functions of the job. In some cases the ADA may require the employer to provide unpaid leave as a reasonable accommodation beyond what is required by the FMLA. For example, an employee who has exhausted her FMLA leave may be entitled to additional leave as a reasonable accommodation under the ADA if her serious health condition also satisfies the ADA’s definition of a disability.

In addition, note that although you can offer an accommodation other than leave to an employee with a disability, you cannot require her to remain at work with the help of that accommodation in lieu of taking FMLA leave.

Amendments to the ADA

The ADA Amendments Act of 2008 (ADAAA) dramatically expanded the ADA’s protections to individuals with disabilities. The biggest difference is that far more physical and mental impairments qualify as disabilities under the ADA than under the previous version of the law. As a result, it is more likely than ever that an employee who has a serious health condition under the FMLA will also have a disability under the ADA and be entitled to that law’s protections.

In general, the ADA requires an employee to show that he suffers from a physical or mental impairment that substantially limits at least one major life activity. Under the original ADA (and court decisions interpreting it) that was a very difficult standard to meet. However, the ADAAA significantly changed the analysis of what it means to have a disability in the following ways:

  • There is no longer any clear requirement that an impairment be permanent or even last very long in order for it to be considered a disability.
  • In determining the extent to which an impairment limits a major life activity, employers are to disregard the effect of mitigating measures such as medication to control diabetes or a hearing aid to help the hearing impaired. This is true even if the mitigating measures completely eliminate the effect of the underlying impairment. (The only exception is for ordinary eyeglasses and contact lenses.)
  • Similarly, impairments that are in remission are to be considered disabilities if they would substantially limit a major life activity while active.
  • The definition of a “major life activity” has been significantly expanded to include not only nearly every physical or mental function you can imagine, but also to include major bodily functions. So, if an impairment such as cirrhosis substantially limits a person’s liver functions, that person will have a disability under the ADA regardless of whether his ability to function is impaired or not.

In addition, the Equal Employment Opportunity Commission’s ADA regulations list a variety of impairments that will “virtually always” be considered disabilities regardless of their effect on an employee’s daily life.

Overlap of Serious Health Conditions and Disabilities

It is not hard to see that the ADAAA’s expansion of what it means to have a disability resulted in more overlap between conditions that will be considered both serious health conditions under the FMLA and disabilities under the ADA. Anytime an employee requests leave for his or her own serious health condition, you should consider whether the employee may also have a disability under the ADA and therefore be entitled to a reasonable accommodation.

In our next installment, we’ll cover leave as an accommodation and other issues surrounding the intersection of the FMLA and ADA.