Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA)

By on November 28, 2012 in Current Events, Human Resources with 12 Comments

A very commonly asked question is “how do I make sure I comply with the provisions of FMLA and the ADA?”  Or, “what are FMLA and the ADA companion laws that must be considered when someone has a serious health issue?”

These are excellent questions, and ones that every manager and HR department better be asking themselves if they wish to stay out of trouble.

While these two pieces of legislation are separate, they are equals and complement one another under certain conditions.  Once more this is what makes the administration of FMLA and the ADA more complex, and employers can be caught in a crossfire between the two laws if they do not prepare well. Remember each piece of legislation has differing qualifying requirements, and often reading about each can throw the casual reader off track if they mistakenly apply private sector law to a federal situation.

FMLA actions in the federal government for the most part are governed by the regulations promulgated by the Office of Personnel Management for Title II employees.  These regulations can be found in 5 CFR § 630.1201.  However, there are a number of federal employees who are covered by Title I and these employees fall under the Department of Labor regulations 29 CFR § 2601 and Part 825.  Only in government can we muddy the waters with such alacrity.  (See my earlier article on FMLA, Title I vs. Title II).

By way of example, in the private sector FMLA only applies to employers of 50 employees or more.  Again, in the private sector the ADA only applies to employers with 15 or more employees.  Federal, state and local governments are covered employers under both FMLA and the ADA regardless of how many employees they have.

Unlike FMLA, the ADA does not require any period of service to be a qualified and covered employee.  An employee only needs to meet the definition of a disabled person under the ADA, and now the ADAA, and someone who is capable of performing the essential functions of the job, with or without reasonable accommodation.  A disability is generally defined as one of the following:

  • A physical or mental impairment that substantially limits one or more major life activities;
  • A history of such impairment; or
  • Being regarded as having an impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.

Under FMLA, eligible employees are entitled to leave if they suffer from a “serious health condition.”  This serious health condition may or may not be a disability, or a disability that is long lasting or permanent.  For example, a person with cancer would be viewed as a person with a “serious health issue” and a “disability.”  A person with a broken arm or recovering from a torn rotator cuff surgery may not give rise to a disability.  If the person currently satisfies the definition of being disabled, it is quite likely they would also be viewed as having a serious health issue making them eligible for FMLA, and its leave provisions.

Under the ADA, if a reasonable accommodation invokes an “undue hardship” upon the employer, then that accommodation is not deemed to be reasonable, and does not need to be provided.  Nor is a disabled person entitled to the specific accommodation they desire, if other accommodations are available.

Unlike the ADA, FMLA does not have any “undue hardship” exemption.  With FMLA a qualified employee is entitled to 12-weeks of leave, either concurrent or intermittently.  This leave can also be a “reasonable accommodation.”

When an employee requests leave for a disability, the approving official must be sure whether the granting of the leave is a reasonable accommodation under the ADA, or whether this request is being made under FMLA.  Too often this dialogue is absent, and because of that, confusion sets in and friction occurs because expectations are so different.

When this happens, employers and managers must be holier than Caesar’s wife to ensure they do not do anything or say anything that can be misconstrued as an interference with an employee’s entitlement to leave under FMLA.  This can easily occur when a person’s repeated absences hinders their ability to do their job.

It is illegal to take any personnel action or other actions to include performance evaluations or discussions that may be viewed as discrimination or an interference with a person’s right to leave because of their “serious health issue”, to care for an immediate family member who is seriously ill, or to care for a military veteran. This is a very problematic area for supervisors, and some basic guidelines as to how to handles these situations include:

  • In performance discussions, always focus on the performance issues with the employee and not the employee’s conduct or health condition;
  • Do not label an employee’s medical or health issue;
  • Do not assume or come to conclusion without facts; and
  • Simply ask the employee, is there anything that you can provide to assist them to do their job.

What happens when both laws apply?

It is one thing to understand the requirements of both pieces of social legislation, it is quite different to apply them.

Intermittent leave poses a very sticky problem for managers as to how to manage the workflow and the output of the individual against their performance standards.  The first thing you must do is to determine whether just one law or both apply to the situation. Analyze and obtain sufficient information to determine if the employee is disabled.  If the employee is not disabled, then you do not need to worry about the ADA.

If the employee is disabled and qualifies for FMLA leave, you should offer leave as a reasonable accommodation.  In the federal government, unlike industry, you cannot require a person to take FMLA leave, and you may not require the employee to take a reasonable accommodation in lieu of FMLA leave.

If an employee exhausts their FMLA leave, and is still unable to perform the essential functions of their job, it is wise to determine if there is another job as a reasonable accommodation that would enable them to return to work.  With FMLA, you cannot restore a person to work in a position that is not of equal pay and benefits to their previous position.  But, reassigning a person to another job of equal pay and benefits as a reasonable accommodation is not discriminatory.

Practicality becomes problematic when a person is unable to return to duty and there are no reasonable accommodations. This is especially true  when there is no foreseeable end to the person’s health condition.  While it is illegal to terminate someone for FMLA leave or for a medical disability, Congress did not intend that federal positions be held hostage in perpetuity in passing this legislation.

The Merit Systems Protection Board (MSPB) has already addressed this situation in Cook v. Department of the Army.  In this case, 18 M.S.P.R. 610, 611-12 (1984), the Army removed the person because of their excessive absenteeism.

To take such an action, an agency must establish that: (1) The employee was absent for compelling reasons beyond her control so that the agency’s approval or disapproval was immaterial because the employee could not be on the job; (2) the absences continued beyond a reasonable time, and the agency warned the employee that an adverse action could be taken unless the employee became available for duty on a regular, full-time or part-time basis; and (3) the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis. Combs, 91 M.S.P.R. 148, ¶ 13.

Such an action should also be taken only under unusual circumstances, such as when the employee is unable to return to duty because of the continuing effects of illness or injury.

The above case was recently reaffirmed in June 2011 in the MSPB case Sambrano v. Department of Defense, CH-0752-10-0648-I-1.  In this case, the appellant was removed for AWOL.  After more than a year of absence, the agency informed the appellant that since the agency had not received any medical documentation, nor did she or her representative communicate with management as to when it could expect her to return to duty, the agency intended to record her absence as AWOL.

The Board stated: “Where an employee who is incapacitated for duty has exhausted all of his or her leave, it is not improper for an agency to deny LWOP where there is no foreseeable end to the employee’s absence and the employee’s absence is a burden to the agency.”

The MSPB does not care to act as the HR department, and FMLA laws permit employers to fire employees for just cause – as long as the discharge is not discriminatory.  These situations are not easy, but they are not impossible.

Both the ADA and FMLA were major pieces of social legislation to protect workers who become seriously ill or have a disability.   Unfortunately, it is the pressures of meeting organizational and individual performance goals that clash with the protections afforded by these statutes.

We cannot change our race or ethnic origin, but there is one protected group that we can all perhaps join someday – the disabled or chronically ill.  This is especially true as we get older, and if that were to happen, wouldn’t we expect our boss to take an enlightened approach.

Nevertheless, it is when such an occurrence becomes prolonged with no foreseeable end that management has to make the business decision to possibly separate an employee.  When this occurs, supervisors and managers would be well served to immediately consult with HR and counsel.  As a wise carpenter once cautioned:  measure twice, measure thrice, cut once.

© 2016 Robert Dietrich. All rights reserved. This article may not be reproduced without express written consent from Robert Dietrich.

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About the Author

Bob Dietrich has more than 37 years of federal human resources experience and he is a widely known trainer on FMLA, FLSA, Employee and Labor Relations, HR for Supervisors, and is available to bring training to your agency. It is far cheaper to bring the instructor to the class as opposed to the class to the instructor. He may be contacted through Dennis Hermann & Associates.

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  1. BH says:

    Questions. 1-Can my employer use my FMLA condition to (ie Migraines) terminate/find me medically unfit for employment? 2-Can my employer of 10 years submitt my WB-380-E as sole proof as to me being unfit for duty? 3- And if I am terminated, what legal recourse to I have to fight to get my job back?

  2. just bob says:

    can The FMLA be applied for with out the employees knowledge, consent,or permission ? my wife recently was terminated form work after being put on a workman’s comp leave, that was later changed to a FMLA leave. with out her knowledge she did not request leave ..

  3. Happymanilow says:

    Apparently Management in VBA in Newark does not know about about ada

  4. Robert Dietrich says:

    Erspec55, your question is an excellent one, and I can only imagine why your other expert has not answered it is because OPM, to the very best of my knowledge, has not issued any guidance on this, nor has case law for Title II employees addressed this.  Because the OPM regulations only permit an employee to invoke FMLA, and not the employer, then I would say that leave for FMLA reasons can only be deducted for federal employees once they have requested it, and it has been approved after the medical documentation has been received.  Now, having said that, OPM regs and guidance is silent on your particular question, and I have an email from a senior Wage and Hour FMLA administrator that says when OPM regs are silent, the person is to default back to the Department of Labor regulations.  As such the Supreme Court has determined this for Title I employees.  You are out on the ice alone on this, and you willing to create new case law for the federal sector?  I recognize that this answer is less than helpful, but it is an excellent question that I would like to see OPM address.

    • Erspec55 says:

      Thanks for the response and an affirmation that I’m not crazy.  I have racked my brain trying to interpret this issue to the benefit of employee rights and have tried to have someone from OPM provide clarification of 5 CFR 630.1203(h).  Leave it to OPM’s claim of greater transparency to avoid giving an answer. I have even tried to get an answer through a FOIA request and they have simply ignored the request.  I sure hope John Berry reads Fedsmith articles and comments.  

  5. HRguru says:

    Good article.

    You can terminate someone for a medical disability, as long as they cannot perform the essential job functions (being at the job, e.g.) and there is no reasonable accommodation that would allow them to perform their essential job functions.  It’s a Chapter 75 action, but it’s treated a bit differently.  You leave it out, so it appears as if that is not a possible action.
    In addition, it’s technically the Rehab Act which applies, but it’s basically interpreted the same as the ADA.  One key distinction which I don’t believe is mentioned is that intermittent leave is not yet considered to be a reasonable accommodation, only a requirement under FMLA.  

  6. A Caring Daughter says:

    Is there a policy that covers caring for an elderly parent in another state for 3 or 4 months while teleworking full time? This is a frequent situation that many federal employees find themselves in, however, I can’t find a regulation that specifically addresses it.

    • Erspec55 says:

      Caring for an elderly parent who is unable to care for himself/herself falls under an FMLA entitlement.  The problem you pose is the conflict between telework and caring for a family member, be it a child or elderly parent.  Most agencies will want to know how you are expecting to devote your full attention to the job and at the same time providing care to a loved one?  

  7. Erspec55 says:

    Since you have written several articles on FMLA, I have a question you may like to address.  Under FMLA Title I, and based on the Supreme Court decision, Ragsdale v Wolverine Worldwide Inc., a company may subtract leave already used once an employee invokes FMLA.  In other words, if an employee has used 4 weeks of leave and then invokes FMLA, the company can subtract the 4 weeks from the eligible 12 weeks.  Under Title II, all OPM regs, 5 CFR 630.1203 says is, “(h) An agency may not put an employee on family and medical leave and may not subtract leave from an employee’s entitlement to leave under paragraph (a) of this section unless the agency has obtained confirmation from the employee of his or her intent to invoke entitlement to leave under paragraph (b) of this section. An employee’s notice of his or her intent to take leave under ? 630.1206 may suffice as the employee’s confirmation.”

    This can be interpreted in many ways, including that once the employee invokes FMLA the agency can subtract leave already used. This would be consistent with the Supreme Court decision.  What is your interpretation on this and how does OPM interpret it?  I have posed this same question to another expert on the subject of FMLA and she was unable to answer the question.

    • HRguru says:

      Two different situations.   Federal employees may not retroactively apply FMLA and Agencies may not retroactively apply leave either, which you can do under Title I.  If an employee does notice their intent to invoke, or invoke, FMLA, you can charge FMLA from that point going forward conditioned on their ability to document FMLA.  At that point, if they actually do not qualify, you could retroactively change it to regular LWOP.  But Federal employees are able to hold off on FMLA and “stack leave” until the very end.  

      • Erspec55 says:

        That has been the position at Federal agencies but based on what?  The regulations are clear on an agency’s inability to invoke FMLA for the employee and the employee’s inability to retroactively invoke FMLA (except for unusual circumstances).  The regulations are unclear on the agency’s authority once FMLA is invoked.  Has there been any case law where the MSPB, District or Circuit Court has prohibited an agency from subtracting leave already used once the employee invokes FMLA?

        • HRguru says:

          Let’s assume you’re right, and it’s OK to do that.  Why risk it if you’re talking about a few weeks and a termination?  The only place FMLA can be appealed, besides EEO if you’re administering it inequitably, is as MSPB after an adverse action, typically a removal in this case, is taken.  Why bother when the Agency has probably already given 6 months to a year’s worth of leave to the employee?

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