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Article | FINEX Observer

Interplay between Family and Medical Leave Act and the Americans with Disabilities Act

Financial, Executive and Professional Risks (FINEX)

By Mike Bayonne, Esq. , Kristi Dalby-Jones and Joann D. Obi | November 1, 2019

Understanding the complex interplay between the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act Amendments Act (ADAAA) is key for employers.

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Key takeaways

  • When an employee reports the need for an accommodation, the employer should engage in a timely, good faith, interactive process under the ADAAA.
  • Consider whether additional leave is being requested and if it is reasonable under the ADAAA or the PDA. If uncertain, consult with qualified employment attorney prior to taking action.
  • Diligently document all interactions, especially on reasonable accommodation. Employers must be able to show that they engaged in a good faith interactive dialogue about potential accommodations.
  • Provide manager training and awareness to recognize a condition that may qualify under FMLA or ADAAA.
  • Consider risk mitigation strategies, including EPLI.

The interplay between the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act Amendments Act (ADAAA) can be complicated and often confuses employers. First, it is important to distinguish the primary differences between the FMLA and the ADAAA laws. The FMLA is a federal law mandating 12 weeks of unpaid, job-protected leave within 12 months for certain qualifying events (e.g., serious health condition of the employee or an employee's qualified family member, pregnancy, birth, bonding etc.). There may also be state or jurisdictional mandates expanding the definitions for qualified family member, reducing eligibility requirements and/or increasing entitlement time.

The ADAAA is a federal law that addresses employment discrimination for individuals who have had or currently have disabilities impacting their ability to perform their essential job duties. Similar to the FMLA, state and/or jurisdictional mandates may exist that broaden an employee's protections under the ADAAA.

Unlike the FMLA, the ADAAA is only applicable to the employee and does not apply to an employee's family members. This law requires that employers provide reasonable accommodations for applicants or employees, whenever possible, if the accommodations do not create an undue hardship on the company. When an employer provides an accommodation, the expectation is that the individual (applicant or employee) would be able to perform the essential functions of his/her job immediately or at some time in the future. A vast majority of accommodation requests are for additional time off work, which is similar to FMLA. Contrary to FMLA, however, the accommodation timeframe is not as clear cut as 12 weeks and many employers struggle with how to evaluate the appropriate amount of time to approve. While it is reasonable for an employee to be granted leave as an accommodation when other accommodations are not available or if the treatment of the employee requires time off for recovery, all requests must have an estimated return to work timeframe before the employer can determine if the request can be approved without causing a hardship to the company. Furthermore, employers must work with impacted employees and engage in the "interactive process" to evaluate appropriate accommodations. We will further explore the concept of the interactive process below.

The ADAAA and FMLA have Separate and Distinct Goals

The two Acts have distinctively different purposes: the ADAAA is intended to ensure that qualified individuals with disabilities are provided with equal opportunity to work with or without an accommodation, while the FMLA's purpose is to provide job protected leave from work due to their own serious health condition or the condition of a qualified family member.

While both laws provide employees with job protected medical leave, the leave provisions of the FMLA are time limited and have an independent set of eligibility criteria which the employee must satisfy. To be clear, if an employee is eligible for FMLA leave under the law, and provides the appropriate certification, then the right to leave is an entitlement; i.e., the employee shall be granted the FMLA leave up to 12 weeks in 12 consecutive months.

ADAAA's Interactive Process vs. FMLA's Certification Process

Unlike the ADAAA, the FMLA process does not require engagement in the interactive process. Instead, it focuses on the completed certification from the healthcare provider. The ADAAA asks the employer to determine the "reasonableness" of the accommodation requested and permits an employer to offer an alternate accommodation, other than the exact one requested by the employee, if it is effective and consistent with the medical provider's assessment of the condition. This differs significantly from the FMLA, where an employer cannot substitute an alternative or modified accommodation that deviates from a valid FMLA certification to keep an employee at work.

Impact of ADAAA on Leave Taken under FMLA

Under the ADAAA, when an employee has exhausted job protected leave taken for reasons qualified as disabilities under the ADA—including certain leave permitted under FMLA— employers are advised to engage in a timely, good faith, interactive conversation with the employee. The goal of the interactive process is to identify accommodations that will meet the employee's needs without unduly burdening the employer. This could include implementation of alternative accommodations that result in improved attendance, a reduction of unnecessary leave, smarter scheduling of medical appointments, or simply the opportunity to talk with an employee about how best to manage the leave needed.

The ADAAA and FMLA Should Not Be Applied in a Vacuum

When considering these laws, it is important for employers to be particularly aware of the Pregnancy Discrimination Act (PDA) and its relationship with the FMLA and ADA.1 The PDA prohibits discrimination based on pregnancy, childbirth or related medical conditions. As set forth above, the FMLA provides leave to eligible employees, which includes pregnancy-related medical care. Additionally, although pregnancy itself is not a disability, pregnant workers may require an accommodation to perform the essential function of the job, i.e. no lifting over 20 pounds or frequent breaks. Pregnant workers may have impairments related to their pregnancies that also qualify as disabilities under the ADAAA. A number of pregnancy-related impairments are likely to be disabilities—even though they are temporary—such as back pain, post-partum depression and gestational diabetes. Accordingly, if a qualified employee has a pregnancy-related impairment that is also a disability under the ADAAA, the employer must provide the individual with a reasonable accommodation, which may include leave, if needed..

Finally, employers should be aware of the increasing enforcement exposure relative to the ADAAA, FMLA and PDA. Within the last five years, the Equal Employment Opportunity Commission (EEOC) received more than 25,000 claims alleging violations of the ADAAA.2 This does not include charges filed with the state or local Fair Employment Practices Agencies. Additionally, during this period, the EEOC took in hundreds of millions of dollars between voluntary resolutions and litigation.3 Likewise, employers paid out approximately $75,000.000.00 in connection with PDA claims at the agency level alone. Similarly, the Wage and Hour Division, Employment Standards Administration, of the Department of Labor (DOL) recorded that employers paid out approximately $1,800,000 in back wages in 2018 in connection with FMLA claims.4 These figures not only underscore the need for employers to understand their legal obligations but also the need to mitigate risk. Thus, in addition to maintaining the proper infrastructure and providing training, an employer should consider working with industry specialists to develop risk mitigation strategies, including obtaining employment practices liability insurance (EPLI) designed to protect employers against the "people risks" associated with running a business. According to researchers, three out of five employers will be sued by a prospective, current or former employee while they are in business. While many suits may be groundless, defending against them is costly and time-consuming.

1 As noted above, there may be other state and/or jurisdictional laws in place that afford greater protections to employees than those provided under the ADAAA and FMLA.
2 See U.S. Equal Employment Opportunity Commission, Enforcement & Litigation Statistics. ADA Charge Data – Monetary Benefits,
3 See U.S. Equal Employment Opportunity Commission, Enforcement & Litigation Statistics. ADA Charge Data – Monetary Benefits, FY 1997 - FY 2018
4 See Wage and Hour Division, Employment Standards Administration, of the U.S. Department of Labor, FMLA Data.

Title File Type File Size
FINEX Observer: Fall 2019 Edition PDF 6.7 MB

Mike Bayonne, Esq.
Ford Harrison LLP

Kristi Dalby-Jones
Associate Director of Absence, Disability Management and Life

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