When an employee seeks Family and Medical Leave Act (FMLA) leave for their own serious health condition, their leave also might qualify as reasonable accommodation under the Americans with Disabilities Act (ADA). However, the two laws differ in terms of employer coverage, employee eligibility, qualifying reasons for leave, employer obligations, employee protections, and more. 

Employers evaluating leave requests must remember that even if an employee requesting leave does not qualify for FMLA leave (for example, if the employee was not employed for the requisite amount of time), it may be a reasonable accommodation under the ADA or state anti-discrimination laws. Likewise, many employees eligible for FMLA leave may not be entitled to leave as a reasonable accommodation under the ADA (for example, if the employee’s medical condition does not meet the definition of disability). Therefore, it is important for employers to understand the differences between these statutes and the points at which they intersect. An employer handling a leave request for an employee potentially covered by both the FMLA and ADA should determine an employee’s eligibility and rights under each statute separately and consider whether the two statutes overlap regarding the appropriate actions to take. 

What does it take for the FMLA to cover an employer?

The FMLA covers private employers with 50 or more employees on payroll within a 75-mile radius for 20 or more calendar weeks (which do not need to be consecutive) in the current or prior year. The FMLA provides a covered employer’s eligible employee with a qualifying need for leave due to their own serious health condition with up to 12 weeks of unpaid leave during an employer-specified 12-month period. 

What does it take for an employee to be eligible for FMLA leave?

To be eligible under the FMLA, an employee must work at a site with 50 or more employees in a 75-mile radius, must have worked for the employer for at least 12 months (not necessarily consecutive), and must have worked at least 1,250 hours for the employer in the 12 months immediately preceding the first day of the requested leave. 

What does it take for the employee’s absence for their own medical condition to qualify for FMLA leave?

There are numerous scenarios in which an employee’s illness, injury, impairment, or physical or mental condition qualifies as a serious health condition under the FMLA. An employee’s illness, injury, impairment or physical or mental condition qualifies as a serious health condition under the FMLA, if it involves:

• An overnight stay in a hospital, hospice, or residential medical care facility or any subsequent treatment in connection with that inpatient care; 
• Any period of incapacity, including an inability to perform regular daily activities, for more than three consecutive full calendar days and any later treatment or incapacity required or caused by the same condition that also involves either:
  • Two treatments, with treatment defined as an in-person visit to a healthcare provider (the first treatment must occur within seven days of the first day of incapacity); or
  • One treatment by a health care provider who prescribes continuing treatment;
• Periodic incapacity because of a pregnancy, including morning sickness or prenatal care.
• Chronic conditions such as migraines, depression, or diabetes that:
  • Require at least two visits per year to a health care provider for treatment;
  • Continue over an extended period; and
  • Cause episodic incapacity;
• Permanent or long-term incapacity resulting from a condition for which treatment may not be effective, such as Alzheimer’s disease; or 
• Conditions that require absence to receive multiple treatments for:
  • Restorative surgery after an accident or injury; or
  • A condition that, without medical intervention or treatment, would most likely cause a period of incapacity of more than three consecutive calendar days, such as cancer.

What makes an employer covered under the ADA?

The ADA covers private employers with 15 or more employees on their payroll for 20 or more calendar weeks (which do not need to be consecutive) in either the current or preceding calendar year. To be eligible for reasonable accommodation, an employee must be a qualified individual with a disability. A qualified employee both satisfies the requisite skill, experience, education, and other job-related requirements of the position the individual holds; and can perform the essential functions of the position with or without a reasonable accommodation. An individual is not considered qualified if the person poses a direct threat, which means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation, considering the duration of the risk, the nature and severity of the potential harm, the likelihood of the potential harm, and the imminence of the potential harm. 

For purposes of providing a reasonable accommodation under the ADA, disability is defined as either a physical or mental impairment that substantially limits one or more of the major life activities of the individual or a record of this kind of impairment. For instance, pregnancy is generally not recognized as a disability under the ADA; however, impairments related to pregnancy may qualify as disabilities if they substantially limit a major life activity.

Difference between the ADA and FMLA 

Under the ADA, an employer does not have to provide a reasonable accommodation that would cause an “undue hardship” to the employer. Generalized conclusions are not enough to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including:

• Nature and cost of the accommodation needed
• Overall financial resources of the facility making the reasonable accommodation, the number of people employed at this facility, and the effect on expenses and resources of the facility
• Overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity)
• Type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer
• Impact of the accommodation on the operation of the facility

The FMLA does not have a similar “undue hardship” exception. For example, an employee with an ADA disability requests that she be excused from work one day a week for the next six months because of her disability. If this employee is eligible for a modified schedule under the FMLA, the employer must provide the requested leave under that statute if it is medically necessary, even if the leave would be an undue hardship under the ADA.

Where do FMLA and ADA coverage overlap?

There are multiple instances when ADA and FMLA coverage could overlap or an employee qualifies for both. This could happen when an employee has a need for FMLA leave but a need for a different reasonable accommodation under the ADA, such as longer and more frequent breaks than the employer generally provides.   

A few additional instances where the FMLA and ADA overlap include:

• An eligible employee with a need for leave due to their own serious health condition qualifies for continuous leave, reduced schedule leave, or intermittent leave under the FMLA
• The employee’s medical condition meets the definition of disability under the ADA
• Leave or a modified work schedule is a reasonable accommodation that enables the employee to perform the essential functions of their job without undue hardship on the employer

In some cases, an employee who is receiving leave both under the FMLA and as a reasonable accommodation under the ADA might not be released to return to work upon the exhaustion of FMLA leave. In such cases, the employee should provide the employer with a medical inquiry form from their healthcare provider that identifies the amount of leave needed beyond 12 weeks and describes how the additional leave will enable the employee to perform the essential functions of their job. The employer should examine whether the additional leave creates an undue hardship for the employer.

How to handle employees FMLA or ADA requests

To reduce confusion and maintain compliance with both the FMLA and ADA, employers should analyze an employee’s request for leave and/or reasonable accommodation under each law separately before determining where the laws overlap and where they diverge. While all of this can cause some confusion, Stanton Law attorneys are standing by to assist employers with any and all questions about the FMLA and/or ADA.