HR Management & Compliance

Coordinating FMLA with Discrimination Laws

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.

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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. In the last installment, we looked at the ADA and leave accommodations. Here, we’ll look at how to coordinate the FMLA with discrimination laws.

Pregnancy Discrimination

The federal Pregnancy Discrimination Act (PDA) applies to employers that have at least 15 employees. The PDA, which amends Title VII of the Civil Rights Act, requires that a covered employer treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work.

The Equal Employment Opportunity Commission’s (EEOC’s) 2015 pregnancy discrimination guidelines make it clear that PDA covers lactation, current pregnancy, past pregnancy, and a woman’s potential to become pregnant in the future. The EEOC has also indicated that it will broadly interpret cases when pregnancy-related conditions will be considered disabilities under the ADA.

The PDA has the potential to overlap with the FMLA as it relates to employer-provided leave policies. Since Title VII applies to employers that have only 15 employees, it may apply to employers that don’t have the 50 employees required to be covered by the FMLA. Employers that have at least 50 employees must comply with both laws.

One issue that frequently arises in this regard is the leave provided by an employer to its pregnant employees. When you adopt any leave policies, keep in mind that pregnant women must be treated the same as other employees.

Some employers have violated the PDA by establishing policies requiring pregnant women to take mandatory leave during pregnancy or prohibiting them from returning to work for a designated period of time after childbirth. Don’t fall into that trap. It’s up to each female employee to decide when and if to take leave and when to return to work afterward.

Remember, in July 2015, the EEOC issued revised guidance regarding an employer’s obligation to accommodate pregnant employees.

Genetic Discrimination

The EEOC’s final rule implementing Title II of the Genetic Information Nondiscrimination Act (GINA) impacts FMLA medical certification requirements. The GINA regulations require, among other things, that employers include a “safe harbor” statement in all requests for FMLA medical certification and fitness-for-duty certification.

According to GINA, if an employer provides a safe harbor notice with the request for medical certification, any receipt of genetic information in response to the request will be considered inadvertent and will not violate GINA.

In 2015, the U.S. Department of Labor issued new FMLA medical certification forms containing a reference to GINA. In the new FMLA forms, the instructions to healthcare providers (section III) now state:

“Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).”

Because the new FMLA certification forms do not contain the level of detail on GINA and its requirements and definitions that the safe harbor statement contains, FMLA experts are currently recommending that employers continue to include the GINA safe harbor statement with requests for medical certification, just as they had prior to the issuance of the new forms.

In the next installment, we’ll cover the coordination of FMLA leave and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).