FMLA and The Treacherous Triangle

The author says that the workplace has its own “treacherous triangle” that instills distress in managers trying to accomplish a program plan consisting of FMLA, ADA, and FECA. He explains more about what these are and how they interact with each other.

The legend of the Bermuda Triangle is well known to instill trepidation in mariners and aviators who venture through it.

The workplace has its own “treacherous triangle” that instills distress in managers trying to accomplish a program plan. It consists of the Family and Medical Leave Act (FMLA), The Federal Employees Compensation Act (FECA), and the Americans with Disabilities Act (ADA). Each piece of legislation is a workforce protection act, where FMLA and FECA are entitlement acts (supported by medical evidence), and the other is an antidiscrimination act. Depending upon the circumstances, they may operate independently of each other, or they may operate concurrently with one another. The trauma is which one applies and when.

FMLA interacts with these other two pieces of legislation, and also does not modify any other federal law prohibiting discrimination. It exists “separate and apart” from other legislation, and FMLA does not increase or decrease an employer’s obligation under any other law. Depending upon the circumstances, it may offer a greater benefit to an employee.

Assume for a moment you have an employee who is injured as a result of a workplace accident because she tripped coming down a stair where a frayed carpet caught the tip of her shoe. Which law applies?

In this case, all three laws may come into play. Because of this accident, she was covered by worker’s compensation under FECA. The employee immediately sought medical attention, and was advised to stop working for a period of time. This medical documentation was furnished timely to the supervisor.

Under FECA the employee is entitled to up to 45 days of continuation of pay. Her full time position required her to travel frequently to cover her field assignments.

After the 45 days of convalescence, the employee notified her supervisor that she was able to return to duty on a limited schedule because she was still in need of physical therapy, and she was restricted to light duty. Upon her return she requested FMLA leave on an intermittent basis to cover her periodic physical therapy.

Now, we have both FECA and FMLA running concurrently, and aspects of the ADA come into play because of her ongoing medical circumstances. Her medical documentation revealed that because of recurring back spasms she was restricted from travel so she was not yet able to assume her full duties.

Under the ADA she asked for a reasonable accommodation in the form of a light duty assignment, which was granted. Even though she had a light duty position, she had the right to remain on FMLA to continue her medical treatments, and she would be eligible for her full 12-weeks of intermittent leave, based upon her attending physician’s certification that her physical therapy was still necessary.

Remember, under FMLA, a Title II federal employee qualifies for coverage after he or she has worked for the government for at least a 12 month period. The ADA reasonable accommodation provisions apply to any qualified employee who has a disability. A serious illness under the FMLA regulations does not necessarily mean the person is disabled.

On the other hand, it is more likely that a person who is a qualified disabled person will constitute an FMLA serious health condition.   The ADA does not require an employer to grant leave as a reasonable accommodation where granting this leave constitutes a hardship. The employer is still burdened with the obligation to demonstrate that the leave does constitute a hardship in terms of real costs and a major disruption to its operations. This is a high burden. Unlike the ADA, there is no “undue hardship” standard under FMLA. It is an entitlement legislation for which this leave is protected, and cannot be used as a basis for any adverse personnel decision.

The FMLA regulations require that after exhaustion of the 12 weeks of leave a person must be returned to his or her former position or a substantially equivalent position. In this hypothetical example, if she was unable to return to her former position which required frequent travel, the interactive dialogue under ADA must continue.

Reassignment under the ADA is a possibility, but here is where the complexity continues to vex management. Assume there are no vacant positions with an equivalent salary and benefits mandated by FMLA. Then does a reassignment to a lesser paying position violate FMLA because the person is unable to perform an essential duty of her former position?

I am not personally aware of any case law that specifically addresses this conundrum. ADA does not require an agency to create a position to satisfy its requirements, and a reassignment is a viable consideration to keep the person employed.

Grade and pay retention was created by the Civil Service Reform Act in 1978 under 5 USC 2105. However, grade and pay retention is not available to a person who is demoted for cause or at his or her personal request.

Here is where you need to think outside the box when two pieces of legislation appear to be in conflict. Although a change to a lower grade may be a voluntary act to preserve employment, it is being driven by an involuntary medical circumstance, a disability. I am aware of a case like this where the agency offered pay retention. While that may be a stretch of the regulations, it is a principled settlement to a very extraordinary situation.

We must live with the reality that these pieces of social legislation may hamper operations, and the ability of a manager to accomplish an organization’s goals and objectives. It is a cost of doing business, but, if that were one of us, how would we expect our employer to react. Sometimes we may object to this perceived interference, but we have to accept it because the cost of violating these laws can be even more damaging.

About the Author

Since retiring in 2011 after nearly 40 years of federal service, Bob Dietrich has been active in training supervisors and HR staff on FLSA and FMLA. He has a three-day course that he can bring to your agency, and he may be reached through the website.