Can HR skip FMLA and go directly to an ADA Accommodation if an employee has never taken FMLA leave?

Question:

Nicole is an HR manager who wants to know is it ever ok to skip directly to an ADA accommodation if an employee has never taken FMLA leave?

Answer:

FMLA is the most protected leave the employee can be provided because it protects both their job and their medical benefits. FMLA is a leave benefit. Any eligible employee who is requesting leave for a valid Serious Health Condition (SHC) should always be provided the FMLA benefit, not ADA.

ADA is an ability to work benefit, not a leave benefit. ADA does not protect your healthcare. The employer may have a different policy that protects their health care while on unpaid leave, but ADA itself does not provide for health care benefits. Hence the need to provide FMLA protection first if the need is to leave. 

If the employee is ineligible for FMLA or indicates they need additional time off once FMLA has been exhausted, they will need to confirm they are a Qualified Individual with a Disability first before you provide leave as an accommodation under ADA. And of course, we need to explain that unpredictable, unreliable attendance is not a reasonable accommodation under the ADA during every meeting if the accommodation request is for leave.

It is important to discuss with the employee FMLA vs. ADA and provide an opportunity to engage in the interactive process if the employee would like you to identify an alternative job they could perform without leave or provide for on-site accommodations with leave.  So be sure to address the ADA and document you did, even if you have a FMLA Third Party Administrators (TPA) for FMLA, it is your responsibility to assure this occurs.

When would you bypass FMLA and go right to ADA Good Faith Interactive meeting? When do you engage in ADA when they are not eligible for FMLA, state they have a disability, and are requesting an accommodation? What about if the employee is requesting leave for half the workday and an on-site accommodation for the other half, like lifting under 10 pounds because they are pregnant? In this case, half the workday would be a FMLA benefit and the other half would be the on-site ADA Accommodation if you can accommodate the 10-pound lifting restriction. If you cannot, the full day would be FMLA and once FMLA was exhausted you would evaluate whether additional leave as an accommodation is “Reasonable” and not an “Undue Hardship.”

Employers know that FMLA is a regulation that protects workers who must miss work due to their own serious health condition or to care for a family member, such as a child, spouse, or parent with a serious health condition. They also know what the Americans with Disabilities Act (ADA), anti-discrimination regulations are.

However, where these laws intersect creates confusion, and failure to comply with these laws is a risky and potentially expensive pitfall. Do you know when and how FMLA and ADA would run concurrently?  If your employer has a TPA’s that is managing the FMLA process for you, it is your responsibility to manage ADA and assure the employee has been informed of the difference between FMLA and ADA.

Making sense of the ADA, FMLA, and leave Reasonable Accommodations has proven to be difficult. To make matters more complicated, many states have enacted their own medical leave laws, some of which provide greater benefits than what is provided by the FMLA.

Need help?

Join us for our virtual advanced workshop in October OR sign up for our on-demand ADA Accommodation Compliance Blueprint package deal where you’ll learn about Essential Function Job Descriptions, Good Faith Interactive Meeting, Undue Hardship Analysis, ADA Accommodation Research, ADA Designation, and ADA Denial and how all these regulations integrate with each other, learning strategies to manage the implementation of multiply regulations with your company policies.

LMS’ courses were created by HR, for HR and we’re here to help and assure you are learning high-level systems for managing the complexity of leaves and accommodations, meeting your HR responsibilities, and more!