Are your managers familiar with the organization’s overlapping obligations under the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA)?  Time and again, I see managers conflate the two, and thereby create liability issues for the organization.  A recent DOL opinion letter exemplifies how this issue can arise, particularly when an employee requests to limit the employee’s daily work hours.

The FMLA and ADA Overlap and Diverge

The FMLA provides employees with up to 12 weeks of unpaid job-protected leave in a 12-month period for various reasons, including when the employee is unable to work because of a “serious health condition.”  The ADA entitles employees to request a reasonable accommodation due to a “disability” if the employee can otherwise perform the essential functions of the job and the accommodation would not present an undue hardship for the organization.  The courts have generally recognized that leave can be an option for a reasonable accommodation.

Not every individual with a medical issue qualifies for leave under both laws, for a host of reasons including:

• The definition for a serious health condition under the FMLA is broader than the definition of an individual with a disability under the ADA;
• The FMLA only applies to employers with 50 or more employees working within a 75-mile radius of each other, while the ADA applies to employers with 20 or more employees working anywhere in the country;
• The FMLA also has eligibility criteria related to the employee’s tenure with the organization, while the ADA has none; and
• Sometimes a medical condition does not warrant a leave of absence but there may be other accommodations to be considered.

There are, however, times when an employee does qualify for leave under both the FMLA and the ADA.

Managers Need to Understand What Leave is “Job Protected”

Time and again, I have been presented with managers who count down the weeks and days until an employee has exhausted the employee’s annual FMLA leave entitlement, and then (if the employee has not yet returned to work) ask if the employee can be fired.  They universally share the misimpression that, having exhausted the FMLA clock, the employee is no longer entitled to legal protection.

That is not correct.  Exhausting the FMLA clock is only the first step in the analysis.  The employer additionally has to assess whether the employee’s medical condition qualifies as a disability under the ADA.  If it does qualify, then the employer may need to consider extending the employee’s medical leave as a reasonable accommodation.  Courts have held that leave for as long as a year may be reasonable, and even at that point an employer may need to entertain a modest additional extension.

All that time is “job protected” – just under the ADA, not the FMLA.  The manager who overlooks the legal protection the ADA provides, and acts on the employee’s continued absence without obtaining legal advice, exposes the organization to legal risk.

Reduced Schedule Leave Presents Special Challenges

Leave under the FMLA is not limited to full-day absences.  Rather, the FMLA recognizes that, particularly for a serious health condition, an employee is entitled to take leave in the form of a reduced work schedule, perhaps arriving later or leaving earlier than the employee’s regular schedule or stepping out for some part of the day for medical treatment or recuperation.

It is often the case, in my experience, that employees who take FMLA leave solely on a reduced schedule basis almost never fully exhaust their FMLA entitlement.   For an employee working a typical eight-hour day, the FMLA equates to 480 hours annually.  If an employee reduces the employee’s work schedule even by as much as two hours daily or 10 hours weekly, it will take 48 weeks before the employee has reached that 480-hour entitlement.  When absences for vacation time, holidays and paid sick time are factored in (none of which days count against the FMLA entitlement), the employee is typically at or approaching week 52 before reaching the 480-hour annual maximum for FMLA leave.  Then the clock starts again with a new calendar year.

DOL Considers What Law Applies to Leave on a Reduced Schedule

A recent DOL opinion letter responded to an employer that was presented with an employee’s reduced schedule leave request.  The employee, who suffered from what was described as a chronic condition and whose workday typically exceeded eight hours, had asked to work a reduced schedule of no more than eight hours daily for an indefinite period of time, using FMLA leave for the balance of the workday.  The DOL had been asked to advise whether the employee was entitled to designate the hours not worked as FMLA leave.  The employer asserted the request should instead be considered one for a reasonable accommodation under the ADA.

While not discussed in the opinion letter, it appears the employer was endeavoring to resolve a conundrum.  Under the ADA, an employer can deny a request for reasonable accommodation if it would present an undue hardship.  This particular employer indicated that it needed 24 hour coverage at times, and multiple employees were requesting a reduced schedule.  Considered under the ADA, the employer might be able to deny or minimize the reduced schedules for its employees.

The FMLA does not offer anything comparable to an undue hardship exception.  If an employee’s current role is not conducive to a reduced schedule, the employer can reassign the employee to another position on a temporary basis for which the reduced schedule might be less disruptive to the operation of the business.  If that is not feasible, for example because there are no such positions for which the employee is qualified, the FMLA offers no other out.  The employer must approve the FMLA reduced schedule leave request and then manage its operations accordingly.

DOL Holds Employees Get the Benefit of Both

The DOL rejected the employer’s suggestion that the employee’s request should be framed solely as one for reasonable accommodation under the ADA framework.  Rather, the DOL concluded that, provided the employee’s medical condition qualifies as a serious health condition under the FMLA, the employee can use FMLA leave to work a reduced schedule until such time as the employee exhausts the employee’s annual FMLA entitlement. If the employee never exceeds the 12-week annual FMLA entitlement, then the reduced work schedule effectively becomes indefinite.  The DOL added that the employee might additionally be able to request a reduced schedule as a reasonable accommodation under the ADA, particularly after having exhausted available FMLA leave.

Prepare Managers to Comply with All the Laws

Consistent with the DOL’s opinion letter, employers need to prepare their managers on how to respond to requests for a reduced work schedule where the request is prompted by an employee’s medical condition.  Organizations need to consider an employee’s eligibility and whether to approve such requests through all applicable laws, including possibly the FMLA, ADA and other state and local leave laws.  Failing to conduct that broad analysis may lead an employer to overlook or inappropriately deny an employee’s request.

By Tracey I. Levy