DBTAC: Great Lakes ADA Center Legal Brief:
The Interplay of the ADA and FMLA
*By Alan M. Goldstein, Senior Attorney, Equip for Equality
For employees and employers, leave from work due to serious illness or disability is a complicated issue. Important laws on both the state and federal level may apply depending on an individual‟s particular circumstances. This paper examines two of the applicable federal laws, the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) and their application and interplay in the context of employee leave due to illness or disability.
General Overview of the Laws
The ADA is a federal statute that addresses the civil rights of people with disabilities in 1numerous contexts. The stated purpose of the ADA is “to assure equality of opportunity, full
participation, independent living, and economic self-sufficiency” for individuals with 2disabilities. The FMLA is a federal statute mandating leave for certain employees for the birth or placement of a child or the serious health condition of an employee or immediate family 3member. An employer, when confronted with the issue of requesting time off for a medical leave, should separately evaluate the employee‟s rights under the ADA and FMLA. In this
evaluation, the employer should consider whether these rights overlap and the appropriate 4actions to take regarding the requested time for medical leave. Employers should also consider
whether state worker‟s compensation laws would cover the leave request. Since worker‟s compensation laws vary from state to state, this paper will not address that issue.
The Americans with Disabilities Act (ADA)
In 1990, Congress passed the ADA and utilized the same definition of disability as the
Rehabilitation Act of 1973, i.e., a mental or physical impairment that substantially limits a major 5life activity. This definition concerning who is covered by the ADA has itself been “substantially limited” by the U.S. Supreme Court and lower courts since the passage of the
ADA. Supreme Court rulings in three cases known as the Sutton trilogy, and a later ruling in 6Toyota v. Williams, limited this definition. As these cases deviated from congressional intent, Congress passed the ADA Amendments Act (ADAAA) of 2008 that went into effect on January 71, 2009. Under the ADAAA, courts will construe the definition of disability much more broadly than in the past.
* This legal brief was written by Alan M. Goldstein, Senior Attorney with Equip for Equality, the Illinois Protection and Advocacy Agency (P&A). Equip for Equality is providing this information under a subcontract with the DBTAC: Great Lakes ADA Center, University of Illinois at Chicago, U.S. Department of Education, National Institute on Disability Rehabilitation and Research Award No. H133A060097. Mr. Goldstein would like to thank Equip for Equality Legal Advocacy Director Barry C. Taylor and Attorney Sarika Gupta for their valuable assistance with this article.
8 Title I of the ADA contains the provisions related to employment. One of the central
provisions of Title I is the requirement that employers provide reasonable accommodations to employees with disabilities that will allow them to perform the essential functions of the job. The employment provisions involve every aspect of employment, including application procedures, medical testing, reasonable accommodations, workplace policies and procedures, benefits, discipline, harassment, and termination. In every situation, the ADA requires that employers 9make an “individualized assessment.” The Equal Employment Opportunity Commission is the
government agency charged to provide guidance and enforcement of ADA for employment 10issues. This paper will not focus on broad ADA or reasonable accommodation issues, but will only examine issues that arise when an employee requests leave from work as a reasonable accommodation.
The Family and Medical Leave Act (FMLA)
The FMLA was passed in 1993 and entitles eligible employees to take up to 12 weeks of 11unpaid, job-protected leave in a 12-month period for specified family and medical reasons.
The purpose of the FMLA is “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a 12serious health condition.” The U.S. Department of Labor (DOL) is the government agency 13charged to enforce and provide guidance under the FMLA. In 2008, the DOL published the
final regulations for the FMLA. The new rules clarify ambiguities in the FMLA as well as 14providing new military family leave entitlements. The new rules are effective January 16, 2009.
Areas of Application and Interaction of the FMLA and ADA
In analyzing employee leave situations, there are four possible situations with respect to the application of the ADA and the FMLA:
1. Only the ADA applies;
2. Only the FMLA applies;
3. Neither law applies; or
4. Both laws apply.
The situation where both laws apply is the most complex. In these situations, an 15employer must provide leave under whichever statute provides the greater rights to employees. 16However, double recovery will not be awarded to the employee for the same loss. The FMLA
Regulations and EEOC Guidance attempt to explain the complex relationship between these two 17laws. In analyzing an employee‟s leave request, “An employer should determine an
employee's rights under each statute separately, and then consider whether the two statutes 18overlap regarding the appropriate actions to take.”
General Provisions for Leave Under the ADA and FMLA
Generally, the ADA and FMLA requirements for leave are:
1. An employee who needs leave as a reasonable accommodation is entitled
to such leave if the leave will not cause undue hardship on the employer.
2. There is no specified limit of time for the leave, but the time must be
3. The amount of leave that is reasonable in a particular circumstance is a
fact specific situation requiring an individualized assessment. 4. The leave must enable the employee to become qualified to perform the
essential job functions with or without a reasonable accommodation at the
end of the leave period.
5. An employer may offer an accommodation other than leave if it is
reasonable and effective despite an employee‟s preference to be granted
leave to accommodate their disability.
6. ADA leave may taken intermittently absent “undue hardship.”
7. An employer must allow the individual to use any accrued paid leave first,
but, if that is insufficient to cover the entire period, then the employer 19should grant unpaid leave.
8. An employer must continue an employee's health insurance benefits
during his/her leave period only if it does so for other employees in a
similar leave status.
9. An employee should be reinstated to the same position after leave absent 20“undue hardship” as long as they are still qualified for the position.
1. An eligible employee is entitled to a maximum of 12 weeks of leave per
12 month period.
2. Leave is also available where “the employee or family member is
incapacitated or unable to perform the essential functions of the position 21because of a chronic serious health condition.”
3. “FMLA leave may be taken „intermittently or on a reduced leave
schedule‟ … when medically necessary for “medical treatment of a related 22serious health condition, … for recovery from treatment.”
4. An employer must allow the individual to use any accrued paid leave first,
but if that is insufficient to cover the entire period, then the employer 23should grant unpaid leave.
5. An employer is required to continue the employee‟s health insurance
coverage during the leave period, provided the employee pays his/her 24share of the premiums.
6. An employee's use of FMLA leave cannot result in the loss of any
employment benefit that the employee earned or was entitled to before 25using FMLA leave.
7. The FMLA guarantees the right of the employee to return to the same
position or to an equivalent one unless the employee is designated as a 26“key employee” (discussed in more detail below).
8. Leave may also be taken to provide care or psychological comfort to an 27immediate family member with a serious health condition.”
9. Eligible employees who are family members of military service members
with a serious injury or illness incurred while in the line of duty, may take 28up to 26 weeks of leave to care for them.
10. Families of active duty members of the Reserve or National Guard may
qualify for leave for a “qualifying exigency”. This leave allows an
employee to handle the affairs of child, spouse, or parent related to a
contingency operation. Qualifying exigency leave counts towards the 29employee‟s 12 week FMLA leave.
If an employee qualifies for FMLA leave under the statute, then the right to leave is 30absolute; i.e. the employee must be granted medical leave. Unlike the ADA, the FMLA does
not take the “reasonableness” of leave into account. The ADA also permits an employer to offer
a reasonable accommodation other than leave if it is effective and eliminates the need for leave despite the employee‟s preference for leave. This differs from the FMLA, where the employer cannot substitute an alternative accommodation for an employee‟s valid leave request. When both laws apply, FMLA leave may be extended beyond 12 weeks as a reasonable 31accommodation under the ADA.
Title I of ADA defines an employer as “a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person...” State and local 32government employers of any size are covered by the ADA. In addition, state and local anti-33discrimination laws may cover employers of any size.
The question of how employees are counted was discussed by the U.S. Supreme Court in the case of Clackamas v. Wells. In Clackamas, a physicians‟ group argued that the ADA did
not apply to them as an employer because it did not meet the 15-employee requirement unless 34the 4 physician-partners counted as employees. The U.S. Supreme Court held that the common-
law element of control in master-servant relationships was relevant in determining whether the physician-partners would also be counted as employees for purposes of the ADA. The Court referenced EEOC guidelines as providing a framework for deciding the central question of “„whether the individual acts independently and participates in managing the organization, or 35whether the individual is subject to the organization's control.‟” The EEOC guidelines cited by
the Court identify the following six factors as being relevant to this determination:
1. “Whether the organization can hire or fire the individual or set the rules
and regulations of the individual's work;
2. “Whether and, if so, to what extent the organization supervises the
3. “Whether the individual reports to someone higher in the organization;
4. “Whether and, if so, to what extent the individual is able to influence the
5. “Whether the parties intended that the individual be an employee, as
expressed in written agreements or contracts;
6. “Whether the individual shares in the profits, losses, and liabilities of the 36organization.”
The FMLA defines an employer as “any person engaged in commerce… who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the 37current or preceding calendar year…” Public agencies are covered by the FMLA regardless of 38the number of employees. Public and private elementary school employees are also covered by the FMLA regardless of the number of employees, but there are special rules addressing 39employees of local educational agencies.
The issue of whether an employee is covered pursuant to Title I of the ADA is a complicated issue and has been the most litigated issue under the Act. Typically, it is more efficient and cost effective for the employee and employer to focus on investigating effective accommodations rather than in making the determination of whether the employee is covered pursuant to the ADA. An employee is considered to be an individual with a disability if they:
1. Have a disability;
2. Have a record of a disability; or 403. Are regarded as having a disability.
A disability is defined by the ADA as a “physical or mental impairment that substantially 41limits one or more of the major life activities.” In order to be protected by the Act, an
individual must be qualified to perform the core job duties, called the “essential functions” of the 42job, with or without a reasonable accommodation. Essential functions are determined by
focusing on the purpose of the function and the result to be accomplished, rather than simply 43considering how the function is currently performed or what is written in the job description. 44These determinations must be made on a case-by-case basis.
A “reasonable accommodation” is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to equally enjoy the benefits and privileges of employment. The EEOC and the courts have conclusively stated that leave from work due to a disability is a possible reasonable accommodation under the ADA. The leave can include accrued paid leave or unpaid leave. The leave may be taken intermittently 45or as a period of continuous time. The EEOC has identified that some of the disability-related reasons for leave include, but are not limited to:
1. Obtaining medical treatment (e.g., surgery, psychotherapy, substance
abuse treatment, or dialysis), rehabilitation services, or physical or
2. Recuperating from an illness or an episodic manifestation of the disability;
3. Obtaining repairs on a wheelchair, accessible van, or prosthetic device;
4. Avoiding temporary adverse conditions in the work environment (for
example, an air-conditioning breakdown causing unusually warm
temperatures that could seriously harm an employee with multiple
5. Training a service animal (e.g., a guide dog); or 466. Receiving training in the use of braille or to learn sign language.
The amount of leave that is required under the ADA is something that depends on the specific situation, and requires an individualized assessment under the factors relevant to a reasonable accommodation and undue hardship analysis. There is no “bright line rule for 47determining a maximum duration of leave that can constitute a reasonable accommodation.”
If holding a position open is deemed by the employer to be an undue hardship, the employer must consider reassignment to a vacant, equivalent position for which the employee is 48qualified and to which the employee may return at the conclusion of the leave.
Making reasonable modifications to policies and procedures is also a form of reasonable accommodation. Employers must modify workplace, attendance, and leave policies to grant 49leave absent an undue hardship. This includes modifying so called “no-fault” policies whereby 50employees are terminated after being on leave for a certain period of time. Employees cannot 51be penalized for time missed during leave taken as a reasonable accommodation. An employer
may offer the employee an accommodation other than leave, for example reassigning non-essential job functions, if the proposed accommodation is effective and eliminates the need for 52leave. Note that the employer does not have this option under the FMLA; if an employee 53 leave.qualifies for FMLA leave, then the employer must grant the
The relevant criteria in determining the reasonableness of leave as an accommodation includes the:
1. Length of leave requested;
2. Whether the nature of the job or the financial circumstances of the
company makes it an undue hardship to keep the position open or hire
3. Cost of the leave;
4. Financial resources of facility involved;
5. Overall financial resources of covered entity;
6. Type of operation, including composition, structure, and functions of work
force; 547. Impact of the leave on operation of facility.
The employee usually has the burden to propose reasonable accommodations and both parties have the duty to engage in the interactive process. The employer, however, has the 55ultimate obligation to provide an effective reasonable accommodation.
A. An “eligible employee” for FMLA leave is someone who:
1. Has been employed for at least 12 months by a covered employer; and
2. Has performed 1,250 hours of work during those 12 months, which do not 56have to be consecutive.
3. In measuring the 12 months, separate terms of employment are counted as
long as a break in service does not exceed 7 years. Military service cannot 57be included in the break in service determination.
4. Works where there are at least 50 employees working within 75 miles of 58the worksite. tho In Bellum v. PCE Constructors, the 5 Circuit upheld the DOL
interpretation that the 75 miles be measured by surface miles, not 59linear miles.
5. Is requesting leave due to their own “serious health condition” or the
“serious health condition” of an immediate family member (defined as 60parent, spouse, or child).
B. The term “serious health condition” means:
1. An illness, injury, impairment, or physical or mental condition that
involves inpatient care in a hospital, hospice, or residential medical care
facility; or 612. Continuing treatment by a health care provider.
o In Russell v. North Browards Hospital, the court held that a 62serious health condition requires three full days of incapacity.
C. “Continuing treatment” is defined as:
1. A period of incapacity of more than three calendar days that results in two
or more treatments by a health care provider within a 30 day period or
2. Treatment by a health care provider on at least one occasion which results
in a regimen of continuing treatment under the supervision of the health 63care provider.
3. Both options for continuing treatment require an in person doctor visit
within 7 days of the onset of the leave.
D. “Continuing treatment” can also include:
1. Any period of incapacity due to pregnancy or for prenatal care, a chronic serious
health condition, permanent or long term condition for which treatment is not
effective (e.g., stroke, Alzheimer‟s disease); or
2. A period of time to receive multiple treatments (e.g., chemotherapy for cancer or 64dialysis for kidney disease).
A Case Illustrating ADA and FMLA Interplay on Employee Coverage
In the case of Verhoff v. Time Warner Cable, Inc., a cable installer claimed that he was 65entitled to leave under the FMLA and ADA due to his eczema. The employee claimed that his
condition limited him in sleeping, caring for himself, thinking, concentrating, and cognitive
processes. The court held that sleeping five hours per night was not a substantial limitation under
the ADA nor were the distractions to the employee‟s mental processes caused by his condition.
However, the employee was covered by the FMLA as his condition did meet the definition of a 66“serious health condition.”
A Case Illustrating ADA and FMLA Interplay on Reasonable Accommodations
In the case of Santacrose v. CSX Transportation, Inc., an employer claimed that it
reasonably accommodated an employee‟s disability by allowing him to use company sick leave 67and FMLA leave to avoid working mandatory overtime shifts. The employee would have
preferred to avoid overtime without being required to use his company sick leave or FMLA leave.
The court held that the employer did comply with the ADA even though it did not provide the
employee the accommodation that he specifically requested. The court did not address the issue 68of what would happen once the employee used up all available sick or FMLA time.
The Employee Request for Leave
Generally, under Title I of the ADA, the employee must make the initial request for leave 69(or any other “reasonable accommodation”). EEOC Guidance provides:
1. The employee “may use „plain English‟” and need not mention the ADA
or the term “reasonable accommodation” as long as the plain meaning of
the request reasonably alerts the employer to the need for leave due to a 70medical condition.
2. There are no formal phrases or words that need be included in the request
3. There are no specific notice requirements in terms of the amount of
advance notice that is required.
4. A friend, family member, service provider, or any other individual can 71make a request for leave on behalf of the employee.
The FMLA Regulations state:
1. “An employee shall provide at least verbal notice sufficient to make the
employer aware that the employee needs FMLA-qualifying leave, and the
anticipated timing and duration of the leave.
2. The employee need not expressly assert rights under the FMLA or even
mention the FMLA, but may only state that leave is needed for an 72expected birth or adoption, for example.”
3. In Aubuchon v. Knauf Fiberglass, the court held that, the employer can
deny the benefits of the leave if the employee does not provide proper 73notice.
4. The FMLA requires the employee to provide the employer with 30 days 74notice of the need for leave if the need for leave is foreseeable.
5. If the need for leave is not foreseeable, the employee must give notice “as 75soon as practicable.”.
6. If the employee fails to give 30 days notice without any reasonable
justification for the delay, the employer is able to delay the leave until 30
days after it received notice.
7. If the employer wishes to delay leave the employee‟s leave due to lack of
proper notice, “it must be clear that the employee had actual notice of the
FMLA notice requirements. This condition would be satisfied by the
employer's proper posting of the required notice at the worksite where the 76employee is employed.”
8. A friend, family member, service provider, or any other individual or
“spokesperson” may make the request for the employee, if the employee is 77unable.
The Employer Response to the Leave Request/Notice of Rights
Once an individual has requested a reasonable accommodation, the employer is obligated to engage in an interactive process with the employee in order to an appropriate and effective 78accommodation. The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. If the need or effectiveness of an accommodation is not apparent, the employer in certain circumstance may make a limited medical inquiry for relevant medical information (discussed below in more detail). In addition to medical information, an employer may inquire regarding the type of reasonable accommodation 79requested. The ADA does not require the employer to provide employees with notice about their rights. However, many employers have information about ADA rights and reasonable accommodation procedures in employee handbooks.
The FMLA requires that employers:
1. Prominently post a notice regarding employee rights under the FMLA;
2. Including an FMLA policy in the employer‟s handbook or policy manual (if
one is available);
3. Provide written FMLA guidance concerning the employee‟s rights and
obligations pursuant to the FMLA if there is no handbook or manual. 804. Provide employees with a standard form when an employee requests leave.
The posted notice must include:
1. The specific expectations and obligations of the employee and explaining
any consequences of a failure to meet these obligations;
2. That the leave will be counted against the employee's annual FMLA leave
3. Any requirements for the employee to furnish medical certification of a
serious health condition and the consequences of failing to do so;
4. The employee‟s right to substitute paid leave and whether the employer
will require the substitution of paid leave, and the conditions related to any
5. Any requirement for the employee to make any premium payments to
maintain health benefits and the arrangements for making such payments
and the possible consequences of failure to make such payments on a
6. Any requirement for the employee to present a fitness-for-duty certificate
to be restored to employment;
7. The employee‟s status as a “key employee” and the potential consequence
that restoration may be denied following FMLA leave, explaining the
conditions required for such denial;
8. The employee's right to restoration to the same or an equivalent job upon
return from leave; and
9. The employee's potential liability for payment of health insurance
premiums paid by the employer during the employee's unpaid FMLA 81leave if the employee fails to return to work after taking FMLA leave.
A copy of a notice may be obtained from local offices of the Department of Labor's Wage and Hour Division, which employers may adapt for their use to meet these specific notice 82requirements. Employers have 5 business days to provide notice to employees. If an employer fails to provide notice in accordance with the provisions of this section, the employer may not take action against an employee for failure to comply with any provision required to be set forth 83in the notice. However, if an employer fails to provide notice that leave already taken counts 84against FMLA leave, the employee may not be entitled to additional FMLA leave. In these
cases, a court will look at the harm suffered by the employee due to the lack of notice to 85determine the proper remedy.
A Case Illustrating ADA and FMLA Interplay on Employee Coverage and Notice
The case of Burnett v. LFW Inc., d/b/a The Habitat Co., involves several ADA and FMLA 86issues. The employee of a property management company, whose job required lifting, had no
performance issues. In October 2003, Mr. Burnett first informed Habitat that he was having medical difficulties. Around the same time, he was offered a transfer to a different location, presumably due to conflicts with a co-worker. The employee declined the transfer as he would have reduced restroom access which would be bad due to his “weak bladder.” He also stated that 87he was going to see a doctor about his medical issues.
In November, the employee received the first verbal warning regarding his work 88performance in his four years of employment. In a December meeting, he provided the
company more information on his medical condition. He said that he “felt sick” even though he
didn‟t look sick. He also stated that he had a fear of prostrate problems as his brother-in-law had prostate cancer. He said that if he had progressive form of prostate cancer, he would feel suicidal. In January, he was told that he was a “loose cannon” and was reprimanded for causing disruptions. Two weeks later, Mr. Burnett told his employer that he was going for a biopsy. He 89was reprimanded for “substandard work” the same day.
After the biopsy, Mr. Burnett requested light duty and one week of vacation leave (to get the biopsy results) and was denied. He was later told to see his supervisor about the leave request, but stated that he felt sick and needed to leave work. He then left work even though he was denied permission. A few days later, Mr. Burnett was terminated for insubordination. He was