A COMPARISON OF AMERICANS WITH DISABILITIES ACT (ADA)
& THE FAMILY MEDICAL LEAVE ACT (FMLA)
Coverage and Eligibility
American with Disabilities Act of 1990
An employer with 15 or more employees is a "covered employer."
A qualified individual with a disability is protected by the ADA. Both an applicant and an employee are thus subject to the ADA's protections.
Family Medical Leave Act of 1993
Private employers with 50 or more employees are "covered employers."
An employee is eligible for FMLA leave if the employee:
1. works at a worksite with 50 or more employees or for an employer who has 50 or more employees within 75 miles of that worksite;
2. has worked for the employer for at least 12 months; and
3. has worked at least 1,250 hours over the 12-month period prior to the date leave commences.
General Purpose and Requirements
ADA
Prohibits discrimination in all aspects of employment against a qualified individual with a disability who can perform the essential functions of the job, with or without reasonable accommodation. Reasonable accommodation must be provided absent undue hardship or unless the employee is a direct threat to the health and safety of himself or others.
FMLA
An employee receives up to 12 weeks of unpaid leave per 12-month period:
1. for child care following the birth of a child or placement of a child for adoption or foster care; or
2. in order to care for a spouse, child or parent of the employee who has a serious health condition; or
3. because of a serious health condition that makes the employee unable to perform the essential functions of his/her position.
Critical Definitions
ADA
An individual has a disability if that individual either
1. has a physical or mental impairment which substantially limits one or more of that person's major life activities; or
2. has a record of such an impairment; or,
3. is regarded as having such an impairment. Temporary impairments and pregnancy are excluded.
FMLA
Serious health condition is defined as:
1. Inpatient care - Any period of incapacity or any subsequent treatment in connection with such inpatient care.
2. Absence plus treatment by a health care provider - Any period of incapacity of more than three consecutive calendar days (and any subsequent treatment or period of incapacity relating to the same condition) that also involves:
a. treatment two or more times by a health care provider, nurse or physician's assistant or provider of health care services under orders from, or
b. on referral by a health care provider; or
c. treatment by a health care provider on one occasion that results in a regimen of continuing treatment under the supervision of a health care provider.
3. Pregnancy - Any period of incapacity due to pregnancy or for prenatal care
4. Chronic Conditions Requiring Treatment - Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
a. requires periodic visits for treatment to a health care provider;
b. continues over an extended period of time; and
c. may be episodic rather than a continuing period of incapacity. examples include asthma, diabetes and epilepsy.
5. Permanent/Long Term Conditions Requiring Supervision - Any period of incapacity which is permanent or long term for which treatment may not be effective. Continuing supervision, but not active treatment, by a health care provider is required. Examples include Alzheimer's, a severe stroke or the terminal stages of a disease.
6. Multiple Treatments - Any period of absence to receive multiple treatments by a health care provider for restorative surgery after an accident or injury, or for a condition that would result in an absence of more than three consecutive calendar days if left untreated. Examples include chemotherapy for cancer, physical therapy for severe arthritis and dialysis for kidney disease.
Employer Notice Requirements
ADA
Employers must post a notice in an accessible format to applicants and employees that describes the provisions of the ADA.
An employer's duty to provide reasonable accommodation is triggered by an employee's request. However, depending upon the circumstances, an employer should consider initiating a reasonable accommodation discussion.
FMLA
An employer has an affirmative obligation to designate absences as FMLA leave. The FMLA requires very specific and detailed notice including:
1. posting of FMLA poster
2. FMLA policy in handbook or policy manual (if employer has such a handbook or manual)
3. written guidance if no handbook or policy manual
4. written notice of FMLA rights and obligations to employees requesting leave (DOL's Employer Response to Employee's Request for Leave Form)
5. written notice of designation of leave as FMLA leave
6. written/oral notice of medical certification and fitness for duty certification requirements
7. written notice of key employee designation
Frequency of notice is generally dependent upon the type of FMLA leave take (continuous v. intermittent/ reduced leave) and whether the employer's leave information changes.
Employee Notice Requirement
ADA
An employee has the obligation to request a reasonable obligation. However, depending upon the circumstances, an employer should consider initiating a reasonable accommodation discussion.
FMLA
An employee need not specifically state need for "FMLA leave" but only an FMLA leave qualifying reason. For leaves that are foreseeable, 30 days notice must be given to the employer. For unforeseeable leaves, notice must be given as soon as practicable, usually verbal notification within one or two business days of when the need for leave becomes known.
For paid FMLA leave, the employer's notification requirements for the particular paid leave being substituted apply, even if less stringent.
Job Protection
ADA
Not guaranteed, but must satisfy reasonable accommodation requirements.
FMLA
An employee need not specifically state need for "FMLA leave" but only an FMLA leave qualifying reason. For leaves that are foreseeable, 30 days notice must be given to the employer. For unforeseeable leaves, notice must be given as soon as practicable, usually verbal notification within one or two business days of when the need for leave becomes known.
For paid FMLA leave, the employer's notification requirements for the particular paid leave being substituted apply, even if less stringent.
Benefit Protection
ADA
An employer cannot discriminate against a qualified individual with a disability with respect to benefit coverage (an employee with a disability must receive the same benefits as an employee who does not have a disability).
A full-time employee who becomes part-time because of a reasonable accommodation need only receive whatever benefit coverage is afforded to part-time employees (absent FMLA protection).
FMLA
For group health benefits, an employer must continue to provide coverage during FMLA leave under the same terms offered to employees not on leave and is required to reinstate an employee upon return from FMLA leave to equivalent group health benefits.
A full-time employee who takes FMLA leave on an intermittent basis or on a reduced leave schedule must be afforded the same group health coverage as if full-time.
For non-group health benefits, an employer is not responsible for maintaining coverage during an FMLA leave BUT an employer is required to reinstate an employee upon return from FMLA leave to equivalent benefits.
Medical Examination Requirements
ADA
For an applicant, any medical examination must be given post-offer. The employer may condition the offer of employment on the results of the exam provided that all entering employees in the same job category are required to take an exam.
For a current employee, medical examinations may be required when:
1. there is a need to determine whether the employee is still able to perform the essential functions of the job.
2. if necessary to the reasonable accommodation process.
3. if required by applicable federal, state or local law as long as job related and consistent with business necessity.
4. if otherwise job related and consistent with business necessity.
No restrictions on the selection or location of a physician or obtaining additional information from the employee's physician.
Medical information sought should be related to disability. Medical records must be kept confidential, in a file separate from personnel files and in a separate locked cabinet. Only those with a true need to know should have access.
FMLA
An employer may require medical certification of an employee's or covered family member's serious health condition by the employee's or family member's health care provider.
1. Employer can only request information contained in DOL's Medical Certification Form and upon receipt of a completed Form cannot request additional information from the health care provider.
2. A health care provider representing the employer may contact the employee's health care provider, with the employee's permission, to clarify and authenticate the certification.
3. If the employee is on workers' compensation leave and the workers' compensation statute permits the employer to have direct contact with the employee's health care provider, the employer can follow the statute.
4. If the employer doubts the validity of the medical certification form, the employer can obtain a second opinion, at its expense. If the second opinion differs, the employer can require a third opinion, which is final and binding.
· Significant restrictions on second and third opinions
· Second opinion cannot be from a health care provider the employer regularly utilizes or contracts with
· Employee/family member must be reimbursed for reasonable out-of-pocket expenses incurred in obtaining the second/third opinion
· Employee/family member cannot be required to travel more than a reasonable commuting distance for the second/third opinion
· Notice of medical certification requirement should be in handbook and in Employer Response Form; then, only oral notice to employee of need for medical certification must be given -- otherwise, written notice must be given
5. Confidentially requirements similar to ADA apply to both employee and family member medical-related records
Fitness For Duty Certification Requirements
ADA
Fitness for duty certifications upon return to work may be required when:
1. there is a need to determine whether an employee is still able to perform the essential functions of the job
2. if necessary to the reasonable accommodation process
3. if required by applicable federal, state or local law as long as job related and consistent with business necessity
4. in all circumstances, must be job related and consistent with business necessity
No restrictions on contact with employee's physician or obtaining second/third opinion
FMLA
Fitness for duty certification upon return to work from an FMLA leave may be required as long as the following conditions are met:
1. employer must have a uniformly applied practice or policy applicable to all employees, not just those returning from FMLA leave
2. notice of fitness for duty requirement should be in handbook and in Employer Response Form; then, only oral notice to employee of need for fitness for duty certification must be given -- otherwise, written notice must be given
3. may seek certification only with regard to the particular health condition that caused the FMLA leave
4. "clarification" of the fitness for duty certification can be obtained by a health care provider employed by the employer, but only with the employee's consent
5. an employer cannot seek a second or third opinion
6. fitness for duty certifications cannot be required for intermittent leaves
7. ADA obligations must be met (see below)
Intermittent Leave Or Reduced Leave Schedule
ADA
Intermittent leave or leave on a reduced leave schedule may be a reasonable accommodation but employer has an undue hardship defense. The employee does not have the absolute right to such a leave. The fact that an employee has taken such a leave under FMLA may make the undue hardship defense more difficult.
FMLA
An employee has the absolute right to an intermittent leave or leave on a reduced leave schedule for the employee's serious health condition or to care for a family member with a serious health condition, if medically necessary. An employer may transfer an employee to an alternative position with equivalent pay and benefits that better accommodates the leave schedule.
Attendance
ADA
Absences due to a disability may be counted as occurrences under a no fault attendance program but reasonable accommodation principles apply.
FMLA
Absences for an FMLA leave qualifying reason cannot be counted as occurrences under a no fault attendance program.
Light Duty Programs
ADA
Reasonable accommodation should not require reinstatement or transfer to a true light duty position because the ADA does not require an employer to remove essential functions from a position. However, if an employer has light duty positions available to employees with work related injuries or employees remain in light duty positions for so long that a new position is created, the EEOC may take the position that employees with non-work related disabilities are entitled to light duty. Therefore, an employer should place as many limits on its light duty program as possible, i.e., limited by time, number of positions, etc.
FMLA
An employee must be able to perform the essential functions of his/her position or an equivalent position upon return from FMLA leave or when requesting intermittent leave or leave on a reduced leave schedule. Reinstatement or transfer to a true light duty position is not required -- but ADA may apply. Also, an employee has the absolute right to FMLA leave even if the employer offers the employee a light duty job.
August 2000