I’ve Got the Need for Leave: The Interaction Between FMLA and ADA

You have an employee who says they are dealing with a medical condition and need leave or other time off from work. What are your legal obligations? How do you balance the needs of your business with the needs of the employee?

There are a variety of laws related to employees needing medical leave. The two most prominent federal laws are the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). The interaction between these two laws, and when they apply, is our focus here.

FMLA Basics

If your business is covered by the FMLA, eligible employees may take up to 12 weeks of leave per year for qualifying reasons related to their own medical condition.

The first question is always whether the employer is covered by the FMLA. Private sector employers are subject to the FMLA if they have 50 or more employees in at least 20 workweeks of that current calendar year or the one before. Public agencies are subject to the FMLA regardless of size.

The second question is whether you are dealing with an “eligible” employee. An employee is FMLA eligible if they meet all of the following criteria:

1. They work for a covered employer for at least 12 months;
2. They have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts; and
3. They work at a location where the employer has at least 50 employees within 75 miles.

The final question is whether the employee has a qualifying reason for leave. Regarding an employee’s own health issues, the FMLA covers leave for (1) a serious health condition that makes the employee unable to work, and (2) the birth of a child (or placement of a child with the employee for adoption or foster care).

If you are a covered employer, the employee seeking leave is FMLA eligible, and the employee has a qualifying reason for leave, the employee is entitled to take FMLA leave and your obligations kick in.

ADA Basics

The ADA applies to employers with 15 or more employees. The ADA has two primary requirements: First, it prohibits discrimination against employees with disabilities, and second, it requires that employers provide reasonable accommodations to employees with disabilities if necessary to enable them to perform the essential functions of their positions. This second obligation is where you might be required to provide leave to an employee who requests it.

The first question is whether the employee at issue has a “disability” as defined under the law. A disability is defined as a physical or mental impairment that substantially limits a major life activity. Courts tend to view “disability” very broadly.

If the employee has a “disability,” the next question is whether the accommodation they seek is “reasonable.” This is highly fact-specific and can depend on a gamut of data points, such as the employee’s specific job duties, the nature of your business, and the length of the requested accommodation. Although you do not have to accept an employee’s suggested accommodation if it is unreasonable, you must “engage in the interactive process,” meaning that you must discuss with the employee why that accommodation will not work, what other accommodations are available, and what his or her specific needs are. 

Although the ADA has not always been seen as a leave law, many courts have begun to view it that way, with several courts across the country holding in recent years that leave and time off work are reasonable accommodations in certain circumstances.

FMLA vs. ADA

Now that we have a refresher on the basics, let’s return to our initial question: If you have an employee who says they are dealing with a medical condition and need time off from work, what are your legal obligations? It depends on whether the FMLA, ADA, or both apply to your company and to the employee in question.

You will first need to determine whether the FMLA, ADA, or both apply to your company. For example, let’s say your private company has 60 employees. In that situation, your company would be subject to both the FMLA (meeting the 50 employees threshold) and the ADA (meeting the 15 employees threshold).

Next, you need to determine whether the employee is FMLA eligible, covered by the ADA, or both. Using our same example, let’s assume that all 60 employees work in one office and that this employee has been working for the company full time for over 12 months. If so, the employee would be FMLA eligible as the employee works at a location that has at least 50 employees in a 75-mile radius and meets the other tenure requirements. Whether the employee is covered by the ADA would depend on whether he or she has a “disability.” As discussed, this is a broad term and often safest to presume that a court would answer affirmatively.

If you have an employee who is FMLA eligible, your obligations kick in, and the employee is entitled to up to 12 weeks of leave per year for a serious health condition. In connection with that leave, don’t forget to provide required forms and have the employee and a physician certify the need for leave, all found . Whether leave beyond that is “reasonable” under the ADA will depend on the facts, but a court will likely not expect you to allow an employee to be on leave indefinitely or for much longer than 12 weeks.

But what if you have an employee who is not FMLA eligible but likely is disabled under the ADA? If the FMLA doesn’t apply, are you off the hook from providing this employee leave? No.

Using our previous example, the employee would not be FMLA eligible if 30 of the 60 employees were based in Atlanta and 30 were based in Nashville, as there would not be 50 employees within a 75-mile radius, or if the employee had not been working for the company for at least 12 months or did not work at least 1,250 hours during the 12 months before FMLA leave starts. So, the FMLA is out. The questions then become is the employee disabled under the ADA (likely yes) and if so — and this is the big question — is the requested leave reasonable? What amount of leave, if any, is “reasonable”? Currently, most courts will likely hold that some amount of leave is reasonable. The amount, however, depends on the employee’s position and responsibilities, the needs of your business, types of leave you provide in other circumstances, and the like. For example, if employees are allowed to take long vacations or if the employee is one of many in a certain position or responsible for certain tasks, longer leave is more likely to be reasonable. On the other hand, if an employee is particularly unique or if the employee’s job is particularly important to the company, more than a few weeks of leave may be unreasonable. You should discuss all of this with the employee and continue engaging in the interactive process to determine what reasonable accommodation you can provide.

Takeaways

The overlap of the FMLA and ADA can be tricky. Start by determining which laws apply to your business and the employee. Then use the steps and examples above to guide you on what is required and what is reasonable. As always, consult your employment lawyer for guidance.