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    What Employers Should Know About FMLA and ADA Leave Requirements

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    What Employers Should Know About FMLA and ADA Leave Requirements

    Author Vathana Sivanesan
    Date 6.21.2023
    Read Time 3 minutes
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    Both of these federal laws, FMLA and ADA, have provisions involving employee leave, but eligibility and employer obligations vary.

    Employees seeking leave, changes to their work schedule, or other accommodations at work due to illness, injury, or ongoing medical treatments may have legal protections available to them under multiple laws. Several protections arise under two important federal laws – the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

    Employers evaluating requests related to an employee’s illness or injury should start with the following considerations in addition to reviewing other federal, state, and local leave and disability laws:
     

    Topic

    FMLA*

    ADA*

    Covered Employer

    50 or more employees on the payroll for 20 or more calendar workweeks in current or preceding calendar year.
    15 or more employees on the payroll for 20 or more calendar workweeks in current or preceding calendar year.

    Eligible Employee

    An employee must have worked for a covered employer:
    1. For at least 12 months (which do not need to be consecutive.)
    2. At least 1,250 hours during the 12 months immediately preceding the first day of the requested leave.
    Exclusion: Any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees within 75 miles of that worksite.
    No mandate of paid or unpaid leave or any specific amount of leave. However, unpaid leave may be a reasonable accommodation for an eligible employee if there is no other effective accommodation and the leave does not cause an undue hardship on the employer.

    Qualifying Reason

    “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:
    (A) inpatient care in a hospital, hospice, or residential medical care facility; or
    (B) continuing treatment by a health care provider.
    “Disability” means:
    (A) A physical or mental impairment that substantially limits one or more of the major life activities of an individual;
    (B) A record of such an impairment; or
    (C) Being regarded as having such an impairment as described in paragraph (A).
    This means that the individual has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both “transitory and minor.”

    Entitlements

    Up to 12 weeks of unpaid leave during an employer-specified 12-month period, if the leave is not for military caregiver leave.
    No mandate of paid or unpaid leave or any specific amount of leave. However, unpaid leave may be a reasonable accommodation for an eligible employee if there is no other effective accommodation and the leave does not cause an undue hardship on the employer.

    Employee Responsibility

    Employees must provide employers at least 30 days advance notice when leave is foreseeable or as soon as practicable when leave is unforeseeable. An employee does not need to specifically assert rights under the FMLA or mention the statute by name to invoke its protections.
    An individual does not need to mention the ADA specifically or use the phrase "reasonable accommodation" to make a valid request for an accommodation.
    The employee must clarify to the employer that an adjustment, change, or other assistance at work is needed and it is related to a disability.

    Employer Responsibility

    An employer must provide to the employee:
    (A) A notice of eligibility and rights and responsibilities within five business days of the employer learning of the employee's need for leave that may be FMLA-qualifying; and
    (B) A designation notice within five business days of the employer having sufficient information to determine whether an employee's leave is FMLA qualifying.
    Once an employer receives a request for a reasonable accommodation, the employer must respond quickly by engaging in the interactive process with the individual with a disability and promptly provide a reasonable accommodation, absent undue hardship (but it does not have to be the specific accommodation requested.)

    Documentation

    Employers may request medical certification of a serious health condition or serious injury, but must notify employees of specific requirements.
    If the disability or need for accommodation is not obvious, the employer may request reasonable documentation about the individual's disability and functional limitations to verify that the individual has a covered disability that needs a reasonable accommodation.Any medical information the employer requests must be job-related and consistent with business necessity.

    Job Protection

    Subject to the key employee exemption and any other employer defenses, requires employers to reinstate the employee to the same or equivalent position.
    Employers must (absent undue hardship):
    (A) hold the job open while the employee is on leave;
    (B) allow the employee to return to the same position if the employee is still qualified; or
    (C) reassign the employee to a vacant position for which they are qualified if holding open an employee's position during a period of leave causes an undue hardship or an employee is no longer qualified to return to the employee's original position.

    *The information presented is not exhaustive. Employers should review the complete laws at ada.gov and dol.gov/agencies/whd/fmla

    There are additional special considerations when evaluating the timing and use of FMLA and ADA leave, FMLA exhaustion, and pregnancy. Employers should consult with their legal counsel in order to obtain the appropriate advice for their specific leave situation.

    For a further breakdown of leave of absence legislation and how employers can ensure compliance, check out this blog: Employee Leave: Clarifying STD, FMLA, and ADA.

    Tags

    Employer Compliance, Compliance consulting, Leave of Absences, ADA, FMLA, Compliance Resources

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    About the Author

    Vathana Sivanesan

    HR Consulting & Benefits Counsel, Compliance

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