ADA and FMLA
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This document provides an overview of the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) regarding employee leave. It discusses that the ADA governs individuals with disabilities while the FMLA covers those with serious health conditions. Key points covered include length of FMLA leave, definitions of serious health conditions and disabilities, required reasonable accommodations under the ADA including leave, interactive process requirements, undue hardship considerations, and guidelines for terminating leave-eligible employees.
ADA and FMLA
- 1. ADA and FMLA: Dealing with Leave Reasonable Accommodations and More
- 2. ADA and FMLA ? The Americans with Disabilities Act governs individuals who are impaired by a disability ? The Family Medical Leave Act governs individuals suffering from a “serious health condition”
- 3. FMLA Leave ? Length: 12 weeks ? Standard: serious health condition prohibiting performance of essential job function ? Unpaid leave ? Entitled to return to work, but not promised the same job
- 4. FMLA – Serious Health Condition ? Inpatient Care ? Continuing Treatment ? Pregnancy of Prenatal Care ? Chronic Conditions ? Permanent or Long Term Conditions ? Conditions Requiring Multiple Treatments ? Treatment for Substance Abuse
- 5. FMLA Notification ? Required to provide employer with the best notice practicable under the circumstances ? Employer may require medical certification within 15 days of its request ? Employer may request second certification at the employer’s cost
- 6. ADA Leave ? Employer is required to reasonably accommodate disabled employees, which includes reasonable leave ? Accommodation must not create an undue hardship ? Employer may require medical certification ? Reinstatement to the same job is required ? If unable to perform prior job, may require reassignment
- 7. ADA Disability ? A disability is defined as a physical and/or mental impairment that substantially limits the ability to perform major life activities ? Major Life Activities ? Caring for oneself ? Seeing ? Hearing ? Eating ? Sleeping ? Communicating ? Major bodily functions
- 8. ADA Accommodations ? ADA requires “reasonable accommodations” that do not require an undue burden ? Failure to provide a reasonable accommodation is discrimination while providing a reasonable accommodation is a defense to the ADA ? Requirement to engage in “interactive process” ? Accommodation: change in the work environment that enables an individual to enjoy equal employment opportunities”
- 9. ADA Accommodations Accommodation Examples Undue Hardship Factors ? Task restructuring ? Modified work schedule ? Modified work equipment ? Providing interpreters ? Reassignment to a vacant position ? Nature and cost ? Financial resources of facility ? Effect on expenses and resources of the facility ? Type of operation ? Administrative/fiscal relationship of facility to the employer ? Impact of accommodation on the facility
- 10. ADA Accommodations ? If not otherwise qualified for position, then no accommodation is required
- 11. ADA – Direct Threat ? No accommodation required ? Factors ? Duration of the risk ? Nature and severity of potential harm ? Likelihood of potential harm ? Imminence of potential harm ? Very difficult standard to prove ? Examples
- 12. Terminating Leave Eligible Employees ADA FMLA ? If no reasonable accommodation after engaging in the interactive process, termination is permissible ? Keep proper documentation of job description, roles, duties, and necessary job functions ? Not uncommon for employees to try to extend beyond leave time ? When terminating an employee for valid basis, be sure to have sufficient documentation
- 13. Terminating Leave Eligible Employees ? When terminating a leave eligible employee for violation of company policy, be prepared for litigation ? Ways to protect yourself ? Create policies and procedures ? Refresh employees on the same ? Train employees ? Apply policies and procedures consistently ? Document application of employees ? Be able to point to documentation
- 14. Avoiding Interference Claims ? Be careful when contacting and commenting to employees about FMLA claims
Editor's Notes
- The American
- Must work at the job for 1 year Also able to take time off to care for family member with serious health condition
- The definition of "continuing treatment" encompasses numerous different scenarios, which are discussed in detail in the regulations. A serious health condition involving continuing treatment by a health care provider includes the following: Incapacity and treatment. Incapacity and treatment requires a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (a) Treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider; or (b) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. The two treatments referred to in (a) above and the initial treatment referred to in (b) above must be in-person. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity. In-person treatment or the regimen of continuing treatment may take place after the period of incapacity has ended and the employee has returned to work. Therefore, leave that may not have qualified as FMLA leave at the time it was taken may later meet the requirements of FMLA leave and need to be retroactively designated as such. NOT USE OF SUBSTANCE ABUSE
- If first and second differ, may request a third
- More narrow definition under the ADA Pregnancy Discrimination & Temporary Disability If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability. For more information about the ADA, see http://www.eeoc.gov/laws/types/disability.cfm. For information about the ADA Amendments Act, see http://www.eeoc.gov/laws/types/disability_regulations.cfm.
- CAN’T ACCOMMODATE WHAT YOU DON’T KNOW