United States: The ADA And FMLA: Top 10 Issues That Employers Should Know

From expanding accommodation requests to intermittent leave, employers continue to face challenging issues related to the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA). Michael Shetterly—managing shareholder of the firm's Greenville office and architect of the firm's proprietary leave of absence software system, FMLAEdge—examines 10 of the most challenging issues under the ADA and FMLA.

  1. What types of accommodations are available to employees under the FMLA?

    Technically, the FMLA does not provide accommodations; rather, it provides job-protected leave. According to the FMLA, an employee should either be working at 100 percent capacity or on leave (assuming he or she has a qualifying condition).
  2. What types of accommodations are provided under the ADA?

    The ADA provides three types of accommodations: (1) in-job accommodations that will allow an employee to perform all essential functions of his or her job; (2) leave, if it will help return the employee to full employment; and (3) a vacant position search—which is the accommodation of last resort. Employers should offer eligible employees these accommodations in this order.
  3. Does the ADA allow an employee to work at home as an accommodation, even if the company has a rule against it?

    Unless a workplace rule is necessary to an employee fully performing his or her specific job, the ADA may require forgiveness of the rule as an accommodation. It is not a defense to a request for an accommodation to say, "we do not permit that." To defend against such an accommodation, the employer would have to prove that providing the accommodation would result in the employee not fully performing one or more essential functions of his or her job.
  4. Is light duty available under the FMLA and ADA?

    The FMLA does not provide for light duty. Under the FMLA, an employee should be performing all essential functions of his or her job or should be on leave. Similarly, in the run of cases, the ADA does not provide for light duty because light duty is, essentially, the removal of an essential function of a job. The ADA may require light duty, however, if the employer regularly provides light duty to nondisabled persons (outside of a workers' compensation context) or if the employer has light duty positions that it previously created and that are idle (unfilled) at the time a person needs an accommodation.
  5. When it comes to leave, do both the ADA and FMLA offer job protection?

    Yes. The FMLA provides job protected leave, which requires restoration to the same position and benefits that the employee would have had but for taking the leave. Similarly, the ADA provides job-protected leave. Essentially, an employer must hold the employee's position for him or her while on FMLA or ADA leave.
  6. How much leave does the ADA provide?

    It depends. Any amount of leave should at least be considered if there is medical information suggesting it will work (meaning it will result in the employee returning to full duty). An employer must ask whether the leave an employee currently seeks: (1) will be effective in returning him or her to the position; (2) is reasonable under the circumstances; and (3) will result in a hardship to the company.
  7. How should an employer handle healthcare benefits when a person is on ADA leave?

    When an employee is on ADA leave, healthcare benefits are determined by the employee's status under the applicable benefit plan. Unlike the FMLA, the ADA has no provision guaranteeing the maintenance of healthcare benefits.
  8. What are the major differences between the ADA and FMLA?

    Except for a few isolated instances, the FMLA automatically grants leave to any employee that is eligible and needs leave because of a qualifying condition. Generally, whether the leave will be effective, or the amount of hardship the employer will suffer, is irrelevant. Conversely, the ADA grants leave only if it will be effective in returning the employee to full employment, and only if granting it will not result in a hardship on the employer.
  9. Should employers ask for a doctor's note under the FMLA and ADA?

    First, employers must consider why they may want a doctor's note. Is it to prove the employee needs the leave, or is it to prove the employee can return to work? If it is the latter, consider the return-to-work rules covered in the answer to question 10.

    If the employer seeks a doctor's note as evidence of the need for leave, then, under the FMLA, the employer may seek proof from the healthcare provider when the employee first seeks leave for the qualifying condition and again when a new FMLA year occurs.

    Under the ADA, an employer can ask for medical proof any time: (1) the employee is requesting an accommodation or some benefit from the employer, or (2) the employer has an objective basis to believe the employee cannot perform an essential function of his or her job because of an impairment.
  10. What are the rules on returning to work under the ADA and FMLA?

    Under the FMLA, an employer may request a return-to-work certification only if the employee had been out for his or her own condition and then only one time per FMLA year, unless the employee has a safety-sensitive job (in which case, the employer may ask for a certification if the employer has not asked for one within the past 30 days). Under the ADA, the employer must have an objective basis to believe the employee cannot perform an essential function of the job because of an impairment in order to lawfully ask for a return-to-work certification.

Click here to view the May/June 2017 issue of The Employment Law Authority in its entirety.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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