- An employee takes 12 weeks of maternity leave after experiencing a normal, healthy pregnancy, childbirth, and recovery. (ADA doesn’t apply, as there is no disability.)
- An employee needs three weeks off of work due to appendicitis surgery and recovery, but makes a full recovery. (ADA doesn’t apply, as there is no disability.)
- An employee needs eight weeks off for heart surgery and his employer has less than 50 employees. (FMLA doesn’t apply.)
- An employee severely injures her back and has a lifting restriction, but does not require time off of work. (FMLA only provides time off; other accommodations fall exclusively under the ADA.)
- An employee needs four weeks off of work to attend an alcohol rehabilitation program and has only worked for the company for three months, so they are not eligible for FMLA.
Both FMLA and ADA:
- An employee is diagnosed with cancer and needs to have surgery and 16 weeks to recover. After that time she may return on a reduced schedule basis. (The first 12 weeks would be FMLA and the next four weeks and the reduced working schedule would be an ADA accommodation.)
- An employee needs six weeks off for hernia surgery, and when he returns to work he may not lift more than 10 pounds for six months. (The six-week leave would be FMLA, while the job modifications to remove lifting requirements would be an ADA accommodation.)
Both Acts allow an employer to request medical certification, and it is certainly considered a best practice to do so. The employer is not in a position to determine medical eligibility for protection under either of these Acts; therefore, the employer should always allow the employee’s treating physician to make the eligibility determination. Under the FMLA, this is achieved using the WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition. Under the ADA, this is generally accomplished using the ADA Medical Inquiry Form.We often hear from employers that they appreciate the FMLA’s black and white guidelines regarding eligibility, length of leave, and benefits continuation procedures, but they find their responsibilities under the ADA to be a bit nebulous. For example, the FMLA clearly states that an employee with a serious health condition may take up to 12 weeks of job-protected leave within each 12-month period. But the ADA does not set a timeframe with respect to maximum leave time. Rather, it states that the employer must accommodate the employee until such point when providing the accommodations causes undue hardship. There have been cases in which the employer was required to provide job-protected leave as a reasonable accommodation under the ADA for periods exceeding twelve months. Whether a long leave will create an undue hardship is a fact-specific finding unique to each organization based on several factors, such as staffing plans, the organization’s resources, and the nature of the employee’s position. So if you deny extended leave as an accommodation under the ADA, it is very important that you clearly document how such leave would create an undue hardship on the organization.As a side note, it is important to mention that the ADA and the FMLA are not the only laws that may apply to an employee’s leave. These are the two federal laws that generally apply to medical conditions and leave, but some states have acts that provide additional protection to employees. Therefore, it is important to also check your state’s medical leave laws to ensure your employees are provided with all statutory leave and benefits to which they are entitled.When an employee comes to you to disclose a medical issue and to request leave or other accommodations, remember to determine the employee’s statutory rights under the ADA and the FMLA separately. Then, determine how to coordinate the employee’s protections under the separate statutes to ensure compliance with both of them. Don’t forget the important step of medical certification and make sure to internally document all conversations with the employee regarding leave or other accommodations. Remember to stay in touch with the employee throughout the leave and work with them based on the recommendation of their treating physician to see how you may best accommodate them to get them back to work as soon as practicable.Don’t lose sleep over the FMLA and the ADA! Remember that they are simply two acts with the purpose of providing leave and other protections to employees when they are medically unable to perform all of their regular job duties.