9 Secrets For Coordinating Leave Under the FMLA and ADA

By Peter Susser, Esq.

HR professionals may often see the following scenario: An employee is granted FMLA leave to treat a serious health condition that poses long-term restrictions and limitations; 12 weeks pass; the employee fails to return to work; company terminates employee under a “no-fault” absence policy.  The employer granted the full 12 weeks allowed by the FMLA, so it is free to terminate, right?

Not so fast. Blanket termination policies are risky business.

The employer could be violating the ADA by immediately terminating the employee if the individual’s “serious health condition” also could be considered a “disability” under the ADA.  If both laws apply, the employer may be required to provide additional leave, above and beyond FMLA leave, as a reasonable accommodation.

The EEOC views additional post-FMLA leave as a reasonable accommodation, and has made that view more explicit in recent months.  In fact, the EEOC is now actively targeting companies with inflexible absence termination policies (also known as “no-fault policies”) that fail to recognize overlapping obligations.  A company often can avoid liability simply by softening the policy to allow additional leave if:

•   the employee is disabled under the ADA

•   the employee can provide a general window of time for their ultimate return to work; and

•   there is no “undue hardship” to the company.

Even if a company does not have a so-called “no-fault” absence termination policy, it should look to the ADA before making a termination or other significant employment decision about an individual with a disability, who has accommodation rights under the discrimination statute.

Note: If you like this article, consider subscribing to the ADA Compliance Guide, and the Family and Medical Leave Handbook, both of which are available in electronic formats. Back to Mr. Susser’s article.

It may be safest for an employer to agree to provide additional leave if an employee covered by the federal leave statute also has an ADA-covered disability for which such leave may be a reasonable accommodation.

Think twice before permanently replacing an employee out on FMLA or ADA leave.

The FMLA only requires the employer to provide a comparable position upon the employee’s return to work. The ADA, however, creates a more stringent obligation:  an employer may be required to keep the position open unless doing so constitutes an undue hardship on the employer or the employee is seeking indefinite leave. Until the EEOC clarifies the rule or more definitive rules emerge from court cases, companies should carefully weigh a decision to permanently replace an employee out on leave provided as a reasonable accommodation under the ADA.

Plan for long-term absenses.

Immediately assess whether an employee is covered by both the FMLA and the ADA as soon as the employee requests leave under the FMLA — or before, if the employer knows the employee has an ADA-covered condition.  Developing a strategy for managing situations where employees require additional leave will help with work flow and smooth the path to compliance. 

Coordinate internally.

In many organizations, FMLA leave and ADA accommodations are handled by different individuals and sometimes by separate departments. Nevertheless, compliance and administration efforts must be coordinated.  For example, if an employee meets the coverage thresholds applicable to both statutes, consider requiring those in each area of responsibility at the organization to jointly review any termination or other significant decision regarding the employee’s position.

Keep channels of communication open.

The EEOC has made clear that employers are responsible for engaging in an “interactive process” with employees who have an ADA-protected disability and may require further accommodation.   HR managers should document every telephone conversation, email exchange, or letter sent to employees while they are out on leave.  Before the end of the12-week leave period covered by the FMLA, an HR manager should request information from the employee about his or her expected return date.

Documentation is especially important in cases where the employee fails to respond to the employer’s attempts to engage in the interactive process.  The EEOC is more likely to dismiss a disability discrimination charge where the employer can show it tried to maintain contact during the employee’s leave.

Review your policies for conflicts, contradictions and inconsistencies.

With the EEOC’s revised outlook on ADA enforcement, employers should make sure their ADA, FMLA, and “no-fault” absence termination policies (if they have one) do not conflict.  Employers should be careful that their policies do not foreclose the possibility of additional leave for employees who are disabled under the ADA.  Employer policies do not necessarily need to state that leave may be available; just make sure that the policy language does not prohibit such an option.   

Learn the language of compliance.

Employers must make sure their HR department personnel understand the distinctions between a “disability” under the ADA and a “serious health condition” under the FMLA, and where the two overlap.    For example, employees diagnosed with cancer are likely to be protected under both statutes, but a normal pregnancy is only protected under the FMLA, not the ADA.

Avoid cookie-cutter policies.

Employee A, recovering from back surgery, may be able to return to work with a special ergonomic chair as an accommodation.  However, employee B, also recovering from back surgery, may need additional leave in order to facilitate his return to work.  Thus, says the EEOC, accommodation decisions under the ADA must be decided on a case-by-case basis.   The reasonable accommodation (a chair vs. leave) must be individually considered based on the specific employee’s needs in order to ensure ADA compliance.  Remember: the “interactive process” requires two-way communication, not just employer to employee.

Do NOT count out the ADA, when FMLA does not apply.

To be eligible for FMLA leave, an employee must have at least 12 months of service, worked 1250 hours within those 12 months, and work at a site with 50 or more employees.  Employees who do not meet these criteria are not eligible for FMLA leave.  However, such an employee may be eligible for leave as a reasonable accommodation under the ADA.

The ADA applies to employers with 15 or more employees and there are no minimum service requirements.  Furthermore, the ADA Amendments Act gives a broad definition to the concept of disability. Disabilities may include impairments that are physical or mental, as well as those that are episodic or in remission.  Most ailments covered by the FMLA will also be considered disabilities under the ADA.  Notable exceptions include normal pregnancies, and common illnesses such as influenza.  However, many other conditions – e.g., cancer, diabetes, schizophrenia, and in certain circumstances, depression – are covered under both the FMLA and the ADA.  Thus, employers must recognize that employees who do not qualify for FMLA leave may still be eligible for leave as a reasonable accommodation under the ADA.

Don’t forget about state laws.

In addition to navigating the confusing interaction between the FMLA and the ADA when it comes to leave, employers must also consider applicable state laws.  Federal law is a minimum standard, and states generally are free to impose more significant restrictions on employers. For example, the District of Columbia’s disability discrimination laws apply to employers with one or more employees.