HR Management & Compliance

ADA Leave Issues: Attendance Bonuses, COBRA, and More

By Kate McGovern Tornone, Editor

When an employee needs a medical leave of absence, your first thought may be “FMLA.” But there’s more to the story: often, the Americans with Disabilities Act (ADA) is implicated right along with the Family and Medical Leave Act (FMLA). And employers need to know exactly what each law requires.

In a recent seminar at Saul Ewing LLP in Philadelphia, Pennsylvania, several attorneys offered insight on these issues during the firm’s ADA Executive Session: Mastering Disability Accommodation Issues.

The speakers included Dena B. Calo, Allison L. Feldstein, and Ruth A. Rauls, all partners at the firm. The following questions and answers have been adapted from the session.

When does leave become an ADA issue?
Leave as a reasonable accommodation can be an ADA issue when: (1) an employer doesn’t have enough employees to be covered by the FMLA; (2) an employee doesn’t qualify for the FMLA; or (3) the employee has already exhausted his or her FMLA allotment for the year, Calo explained.

What’s the difference between an ADA disability and an FMLA serious health condition?

Generally, the two are very similar, Calo said. The FMLA is basically just broader in that it includes leave to care for family. It also usually guarantees an employee’s right to leave, while ADA leave only is required if it is going to help the employee return to work and perform the essential functions of his or her job.

The ADA, however, can be more employee-friendly in other respects. It prevents employers from automatically terminating an employee who is unable to return to work at the end of FMLA leave; they must begin the interactive process of determining whether there is a reasonable accommodation available (which may include more leave).

It’s also important to remember that for FMLA leave, employers must use the U.S. Department of Labor’s (DOL) form; the ADA has no set form to use for medical certification.

Does an employer have to modify attendance policies as an ADA accommodation?
Yes, the ADA states that a modified work schedule can be a required reasonable accommodation. Feldstein said that for her clients, attendance and punctuality issues come up often and everything depends on what’s reasonable.

And remember, the Equal Employment Opportunity Commission (EEOC) says that negative effects on coworker morale cannot be a factor in denying such an accommodation, she added.

Read on for answers to 10 more Q&As from the executive session.