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 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.