As employers we all strive to be in legal compliance, especially when it comes to federal regulations that protect our employees, such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). But it can admittedly get confusing when some legal regulations seemingly overlap or even seem almost contradictory to implement.
Such often happens at the intersection of FMLA and ADA leave requests. The FMLA and the ADA have different goals and protections for employees, yet both have provisions that may require an employer to give job-protected time off when the right circumstances are met.
Under the FMLA, giving job-protected time off to an eligible employee is the primary benefit provided. For an employer that is covered by the FMLA, this leave must be provided if the employee is eligible for it—even if providing it would present a hardship for the employer.
Under the ADA, on the other hand, the primary goal is antidiscrimination and reasonable accommodation for disabled individuals. However, reasonable accommodation could include time off as well, in some instances. The difference here is that the employer is not required to provide something that presents an unreasonable hardship (though bear in mind, proving unreasonable hardship can be difficult).
It’s easy to envision a situation in which an employee may be eligible for leave under either the FMLA or the ADA—and, indeed, may be eligible for leave under the ADA even after the FMLA leave provisions have been exhausted. This is something that employers need to remember when administering any leave policy.
One of the most common situations in which employers encounter this is for employees with chronic health conditions—conditions that clearly qualify them for FMLA leave to manage the condition and also that qualify them as disabled under the ADA regulations.
FMLA and ADA Overlap: What’s the Risk for Employers?
We’ve noted that it’s quite common to find overlap between the FMLA and the ADA when it comes to providing leave for an employee. In principle, it sounds simple enough. But in reality, this situation can get complex quickly because an employer must balance the need to meet legal obligations with the need to be fair and consistent in how employees are treated.
The main risks for employers are:
- Running afoul of the Equal Employment Opportunity Commission (EEOC) by being unwilling to grant additional leave to a disabled employee after FMLA and all paid leave has run out; and
- Creating situations in which other employees have a sense of unfair treatment (whether completely justified or not), which can decrease morale and productivity.Avoiding the appearance of favoritism and/or discrimination that negatively impacts morale may be a tougher item to tackle. Employers should be aware of how policies are communicated and should take steps to ensure employees know that every situation is reviewed on a case-by-case basis and given the same careful consideration. *This article does not constitute legal advice. Always consult legal counsel with specific questions.
Employers must walk that fine line on both of these points. To stay in compliance, employers should be wary of creating blanket policies that set hard limits on total time off, as these policies could easily be construed to take away leave as a reasonable accommodation option. Even seemingly generous leave caps can be suspect in this scenario. It’s better to evaluate on a case-by-case basis.
Avoiding the appearance of favoritism and/or discrimination that negatively impacts morale may be a tougher item to tackle. Employers should be aware of how policies are communicated and should take steps to ensure employees know that every situation is reviewed on a case-by-case basis and given the same careful consideration.
*This article does not constitute legal advice. Always consult legal counsel with specific questions.
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.