This year, the Presagia team has been honored to contribute a column in each issue of the Disability Management Employer Coalition's (DMEC) publication, @Work Magazine. Our column, 'The Pillars of Leave Management,' has explored several core elements of a strong leave management strategy, which we're sharing in this blog series! If you haven't already, check out the first post in the series, regarding data that exists throughout your organization that can support your leave management efforts.
In this second column, we look at the intersection of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA/ADAAA), and what this means for you as a leave manager.
Pillar 2: The Intersection of the FMLA and the ADA
By now, you may be an expert on the Family and Medical Leave Act (FMLA) and its many requirements. But what about the Americans with Disabilities Act (ADA) and when it overlaps with the FMLA? It’s important to know where these laws differ and when they intersect in order to fine-tune your ADA best practices.
While the FMLA provides job-protected leave, the ADA is an antidiscrimination policy that was not specifically created to provide leave. Whereas the FMLA applies to employers with at least 50 employees within a 75-mile radius, the ADA applies to employers with as few as 15 employees with no geographical constraints. The FMLA also grants time to care for the serious health conditions of qualifying family members, whereas the ADA does not.
Under the ADA, an employer must provide reasonable accommodation to employees to allow them to perform the essential functions of their jobs, unless this would cause “undue hardship” to the employer. Many employers became aware of the overlap of the FMLA and ADA following court decisions that leave is appropriate as a reasonable accommodation.
The scope of this practice is being challenged due to Severson v. Heartland Woodcraft, Inc. (Sept. 20, 2017). The 7th Circuit Court of Appeals found that a long-term leave of absence is not a reasonable accommodation because “the ADA is an antidiscrimination statute, not a medical leave entitlement.” The court held that “reasonable accommodation is expressly limited to those measures that will enable an employee to work.” Because this ruling applies only to the 7th Circuit, we recommend employers err on the side of caution until the Supreme Court reviews this decision or other circuits make similar rulings.
Many FMLA serious health conditions also meet the ADA’s broad definition of disability. Once employees exhaust their FMLA entitlement for their own serious health condition, leave as a reasonable accommodation should be evaluated, guided by best practices.
When an employee requests time off, if the reason for leave could be related to disability, this request may involve both an ADA reasonable accommodation and FMLA leave. Requiring and processing FMLA certification is a necessary start but don’t stop there. Should you also suspect ADA issues, give those a separate approval process with its own set of requirements to determine the nature of the disability and decide if the employee is entitled to a reasonable accommodation.
Employers can offer reasonable accommodations that do not involve leave as long as they are effective. Examples of non-leave accommodations include modification of the workplace, job restructuring, reassignment, and improving workplace accessibility.
It’s a best practice to offer accommodations that encourage employees to return to work (RTW) in a safe and healthy manner. One study found that an effective RTW program reduced the length of absence of injured employees by about 3.6 weeks. Effective accommodations ensure your employees stay engaged in the workforce and help maintain productivity.
Read The Other Blog Posts In This Series: