Complying with ADA and FMLA Criteria
The Americans with Disabilities Act and the Family and Medical Leave Act overlap in several different areas, which can sometimes be confusing. Following is a table illustrating the similarities and differences:
| Criterion | ADA | FMLA |
|---|---|---|
| # of Employees for Required Coverage | 15 or more | 50 or more |
| Employee Eligibility Criteria | Day 1 of qualifying disability. No hours-worked requirement. | Employed 12 months. Worked 1250 hours in 12 months. Works @site w/50 or more employees in 75-mile radius. |
| Type & Duration of Leave | May be continuous, intermittent or reduced schd. No fixecd duration; must be "reasonable". | Up to 12 work weeks. May be continuous, intermittent or reduced sched; up to a total of 12 weeks in a 12-month period. |
| Pay & Benefits | Unpaid unless employer allows / mandates use of available leave. No automatic benefits continuation if not reg. policy. | Unpaid; may use vacation, sick leave, PTO, etc. Benefits continue as if actively working. |
| Require / Request Medical Documentation* | May require "fitness-for-duty" cert. only if reasonable belief exists: 1. Ability to perform essential job functions is impaired by medical condition OR 2. Employee constitutes a direct threat because of condition | Must include in "Designation Notice" that fitness-for-duty certification will be required for return to duty; certificate to be limited to cause for leave Certificate from treating physician is acceptable. Ask treating physician. Ask treating physician to assess employee's ability to perform duties listed in certificate. |
| Reinstatement to Prior Job | Considered as reasonable accommodation unless hardship to employer is asserted. | Generally permitted to return to same job with same pay, benefits and working conditions. |
| Light-Duty Assignments | Consider whether essential functions could be performed. Avoid blanket prohibitions / restrictions on light-duty assignments. | Light-duty not to count against FMLA leave total. Cannot force employee to take light-duty vs FMLA leave. |
*NOTE: Under FMLA, employer may not require second opinion or require employee to see company doctor instead of own physician.
Seven questions to consider in a potential FMLA claim are the following:
1. Are you a covered employer?
2. Is the employee eligible for leave?
3. Is the reason for leave covered?
4. How much leave can be taken – and how do you track it?
5. Is the leave paid – and are benefits protected?
6. What and when do you communicate?
7. Is the employee protected from retaliation and job loss?
