Learning Management

To ensure compliance with both the ADA and the FMLA, first determine an employee's rights under each law separately. Then consider whether the two statutes overlap regarding appropriate actions.

Under the ADA, an employee who needs leave related to a disability is entitled to such leave if there is no other effective accommodation and the leave will not cause undue hardship. An employer must allow the worker to use any accrued paid leave first, but if insufficient to cover the entire period, the employer should grant unpaid leave.

The employer must hold the person's job open during the leave, unless it causes undue hardship. When the employee is ready to return to work, the employer must allow the person to return to the same position if the employee is still qualified (can still perform the essential functions with or without reasonable accommodation).

If it is an undue hardship to keep open the employee's position during leave, or an employee is no longer qualified for the original job, then the employer must reassign the worker (absent undue hardship) to a vacant position for which he or she is qualified.

Under the FMLA, an eligible employee is entitled to up to 12 weeks of leave per 12-month period. The FMLA guarantees the right of the employee to return to the same position or an equivalent one. An employer must allow the person to use up any accrued paid leave first, but if insufficient, the employer should grant unpaid leave.

For example, a worker with an ADA disability needs 13 weeks off to treat the disability. The worker is eligible, under the FMLA, for 12 weeks (the maximum), so this period of leave can be both FMLA leave as well as a reasonable accommodation. The thirteenth week, however, is the question. Under the FMLA, the employer may deny it, but not under the ADA, unless it can show undue hardship. In determining this, the employer may consider the impact on its operations caused by the initial 12-week absence, along with other undue hardship factors.

As another example, an employee with an ADA disability returns from 10 weeks of FMLA leave. She wants her old job back; the employer wants to put her in an equivalent, but different, position. This is allowed under the FMLA, but not, again, under the ADA. The ADA requires the employer to return the worker to her original position, absent undue hardship or lack of qualifications, with or without reasonable accommodation.

As a third example, an employee with an ADA disability has taken 12 weeks of FMLA leave. He wants to return, but he can no longer perform the essential functions of his old job. Under the FMLA, the employer could terminate his employment, but under the ADA, not necessarily. Under the ADA, the employer must consider whether the employee can perform the essential functions with reasonable accommodation. If not, under the ADA, the employer must reassign the worker if there is a vacant position available for which he is qualified, with or without reasonable accommodation, and absent undue hardship.

To handle a request for a modified or part-time schedule from an employee covered by both the ADA and the FMLA, once again, first determine rights under each law, separately, then consider any overlap.

Under the ADA, an employee who needs a modified or part-time schedule is entitled to such a schedule if there is no other effective accommodation and the rescheduling will not cause undue hardship.

If there is undue hardship the employer must reassign the worker if there is a vacant position for which he or she is qualified and which would accommodate the requested schedule (absent undue hardship).

An employee working part-time because of a disability is entitled only to the benefits, including health insurance, provided other part-timers. Thus, if non-disabled part-timers don't get health insurance, the employer does not have to provide it to a part-time worker who is disabled.

Under the FMLA, an eligible employee may take leave intermittently or on a part-time basis, when medically necessary, until using up the equivalent of 12 workweeks in a 12-month period. When the leave is foreseeable, an employer may require the worker to temporarily transfer, for the duration of the leave, to an available alternative position, with equivalent pay and benefits, for which the employee qualified and which better suits the reduced hours. Under the FMLA, the employer always must maintain the worker's existing level of coverage under a group health plan during the FMLA leave (as long as the employee pays his or her share of the premium).

As an example, an employee with an ADA disability requests one day off a week, for the next six months, because of her disability. If this employee is eligible for a modified schedule under the FMLA, the employer must provide the requested leave under that law if medically necessary, even if the leave would be an undue hardship under the ADA.

From the EEOC Guidelines

Note that in the case of work-related injuries, FMLA and ADA will supercede workers' compensation laws when there is a conflict.