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The Bermuda Triangle Has Expanded: The FMLA's Intersection with the ADA, Workers' Compensation and More

Authors: Michelle Barrett Falconer and Alexis C. Knapp, Littler

The Family and Medical Leave Act (FMLA) regulations and guidance offered by the Department of Labor (DOL) provide fairly specific rules to follow in the administration of FMLA leave. Although these rules govern how the FMLA leave itself should work, they do not cover all of the other - and often concurrent - employment-related obligations that employers may have. Most commonly, this intersection of rights has been referred to in publications and presentations as "The Bermuda Triangle," and typically includes a discussion of the FMLA, the Americans with Disabilities Act (ADA) and workers' compensation laws. Importantly, however, the overlaps are far more extensive than this "triangle" suggests.

A chart summarizing many of the questions and issues that arise under the below employment laws and obligations when employees seek, take and return from FMLA-type leaves is available by clicking here.

The FMLA and the ADA

When employees seek FMLA leave for their own serious health conditions (as opposed to those of their parents, spouses or children), the employer must ensure that employees not only receive any leave they may be entitled to under the FMLA, but also that the employer complies with its obligations under the ADA. Because the ADA applies to smaller employers as well - those with 15 or more employees - an employer may have obligations under the ADA even if it has none under the FMLA.

The ADA and FMLA have fundamentally different purposes, but their overlap is often unavoidable.

The FMLA provides up to 12 workweeks of unpaid leave, benefits protection and job reinstatement to eligible employees who experience an FMLA-qualifying event or condition (26 weeks for military caregivers). While the FMLA covers leaves for a number of purposes, this discussion focuses largely on employees who take this leave for their own serious health conditions.

Under the ADA, employers may not discriminate against employees because of a disability, and employers may have to provide reasonable accommodations to employees with disabilities, unless doing so creates an undue hardship. This reasonable accommodation obligation requires that the employer and the employee engage in an interactive process to determine whether such accommodations can be made. While ADA protections extend to both employees and applicants, this discussion focuses on current employees who may also have rights under the FMLA.

The relationship between the ADA and the FMLA has existed for years, but has recently received increasing attention from HR professionals, lawyers and, most significantly, Congress and the governmental agencies responsible for the enforcement of both laws. In 2008, when Congress passed the ADA Amendments Act (ADAAA), which amended the ADA, it significantly expanded the definition of disability. From a practical standpoint, many more employees are now covered by the ADA and are eligible for its protections, whether or not they also have rights under the FMLA.

The FMLA and the ADA intersect when an employee's medical condition qualifies both as a serious health condition under the FMLA and as a disability under the ADA, triggering obligations for an employer under both laws. Simply stated, an employee who qualifies for leave under the FMLA may also require some type of accommodation under the ADA in order to perform the essential functions of the employee's job.

Court rulings and the ADA regulations repeatedly reinforce that an employer may be required to consider various types of reasonable accommodations. In the context of employees with serious health conditions/disabilities, such reasonable accommodations have included providing additional leave beyond the FMLA's 12 workweeks (or in lieu of FMLA leave where FMLA does not apply), including unpaid leave, offering flexibility in employer policies and practices and allowing employees to work modified schedules, just to name a few. The following examples, which illustrate potential federal law obligations, may be instructive:

Practical Example

Stephen has been out for three months due to a workers' compensation injury. His doctor has now provided him with a return-to-work release that indicates he will be able to return to work, without restrictions, in one more month. However, he has exhausted his FMLA leave for this 12-month period. Stephen provides the release to Acme Corp. and asks for an additional month of leave. Acme Corp. will need to discuss this request with Stephen and evaluate whether it can provide the additional month of leave as a reasonable accommodation under the ADA (as opposed to the FMLA).

Practical Example

Brian has only been working at Acme Auto for six months when he has a car accident (not related to his job). He requests a week off for surgery and another week for recovery. He is not eligible for FMLA leave. The employer has a policy that employees who take time off of work without having accrued sufficient paid time off to cover those absences will be terminated (unless those absences are protected by the FMLA). Acme Auto must discuss Brian's request with him and evaluate and determine whether it must provide this time off and make an exception to its policy as a reasonable accommodation under the ADA (even though Brian is not protected by the FMLA).

Practical Example

Rebecca has been taking intermittent FMLA leave for chemotherapy treatments. She has exhausted her FMLA leave time, but is at a point in her treatment where she is now able to return to work. However, she has informed her employer, Acme 123 Co., that she will still need time off intermittently for additional treatments and follow-up appointments. Even though Rebecca's FMLA leave time has expired for this 12-month period, Acme 123 Co. must determine whether it is required to provide intermittent leave as a reasonable accommodation for Rebecca under the ADA.

See How to Handle an Employee Returning From FMLA Leave Who May Need an ADA Accommodation.

Building an HR Checklist for the FMLA and ADA

As illustrated in the examples above, the FMLA and ADA provide different types of solutions to assist employees with medical conditions in doing and keeping their jobs. As a result, when an employee needs leave due to his or her own serious health conditions/disabilities, the employer must evaluate its obligations under both laws. The following checklist provides a starting point for this analysis. The employer should supplement this checklist with its own specific practices and policies:

1. Is the Employer Covered by Both Laws?

For smaller employers, the threshold question as to whether the employer even has obligations under both laws is a critical one. If not, the analysis may require a review of obligations only under the ADA, rather than the FMLA and the ADA.

To be covered by the FMLA, the employer must have a total of 50 or more employees. See Employee Leaves > FMLA > FMLA Employer Coverage.

The ADA applies to smaller employers - those with 15 or more employees - and thus may trigger obligations to reasonably accommodate by providing leave, even when the FMLA does not apply (assuming the person is otherwise disabled within the meaning of the ADA). See Employee Management > Disabilities (ADA) > ADA Employer Applicability.

2. Is the Employee Eligible for Leave?

To be eligible for FMLA leave, an employee must have worked for the employer for 12 months, have worked 1,250 hours in the previous 12-month period and be employed at a worksite with 50 or more employees within a 75-mile radius. See Employee Leaves > FMLA > Determining Employee Eligibility for FMLA Leave.

Eligibility under the ADA is quite different - an employee need only be a qualified individual with a disability within the ADA's meaning - a definition that is far easier to meet than in years past. If the employee is a qualified individual with a disability, the employee is eligible to request and receive reasonable accommodations from day one of employment, regardless of the time served or hours worked. See Employee Management > Disabilities (ADA) > What Is a Disability?

Assuming the employee meets the definition of a qualified individual with a disability, an employee's request for leave must be evaluated under the ADA, regardless of whether:

  • The employer is covered by FMLA;
  • The individual employee is eligible for FMLA; or
  • The employee has already exhausted FMLA.

3. What Type of Leave and How Much Leave Is Available?

The FMLA provides that employees may take up to 12 workweeks of leave in continuous blocks of time, intermittently or on a reduced schedule basis, depending on their particular needs.

Practical Example

Type of Leave Example
Continuous Leave

Sarah takes a full 12 workweeks of leave following the birth of her child, and exhausts all of her available FMLA time for this 12-month period.

Intermittent Leave

Eric has a severe degenerative shoulder problem and attends physical therapy every Tuesday and Thursday afternoon, requiring him to leave work two hours early on those days. Eric uses his leave intermittently, two hours at a time, until his 12 workweeks (converted into hours or portions of a workweek) have been exhausted.

Reduced Schedule Leave

Kendra has utilized six workweeks of FMLA time following her knee surgery. Her doctor has released her to return to work 30 hours per week, but her normal work schedule is 40 hours per week. Kendra may take reduced schedule FMLA leave for 10 hours per week - or one-quarter of a workweek - every week until her 12 workweeks of FMLA are exhausted.

Once an employee has exhausted his or her 12 workweeks of FMLA leave for a serious health condition, there is no additional FMLA leave for the employee's serious health condition available during that 12-month period. See Employee Leaves > FMLA > Calculating and Tracking Leave.

Under the ADA - whether or not an employee was ever eligible for FMLA leave - leave taken in continuous blocks of time, intermittently or on a reduced schedule basis may also be a reasonable accommodation. No particular period of time will always be considered "reasonable" in every circumstance. Therefore, leave benefits under the ADA may be less than, similar to or even greater than the amount of leave provided under the FMLA. See Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process.

An employer should be aware that employees may become FMLA eligible while on non-FMLA leave, i.e., they may hit their 12 months of service FMLA eligibility requirement while out on leave. In this situation, the employee may get a brand new 12 workweeks of leave under the FMLA, regardless of how much non-FMLA leave the employer has already provided.

Practical Example

Eddie asks for three months off from work to undergo and recover from back surgery due to a disability. He has only worked for Acme Real Estate for 10 months. As a reasonable accommodation, Acme Real Estate agrees to give Eddie the time off from work. Two months into his leave, Eddie will reach the FMLA's 12 months of service requirement. Assuming he also meets the other FMLA eligibility criteria, Eddie's final four weeks on leave are covered by FMLA. If Eddie returns to work after the three-month leave period, he will still have eight weeks of FMLA leave left for the 12-month period.

4. Payment and Benefits While on Leave

The FMLA provides unpaid leave (although employees may substitute accrued, paid time off such as vacation, sick leave or PTO during their otherwise unpaid FMLA leave). With regard to benefits, the FMLA requires that employee benefits be continued under the same terms and conditions as when the employee was working. See Employee Leaves > FMLA > Employer Obligations When Employee Is Out on Leave.

Leave provided as an ADA reasonable accommodation would similarly be unpaid, except to the extent employers permit/require use of available paid time off (which they should provide for ADA leaves if it is available for leaves under the FMLA). Unlike the FMLA, however, the ADA has no separate benefits continuation requirement. Depending on the language of an employer's particular health plan, employees on leaves of absence under the ADA - rather than the FMLA - may become ineligible for benefits (e.g., by not working sufficient hours per week, by losing his or her full-time status), and instead have to continue their coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). The employer must carefully review the relevant plan document language, as well as any applicable state law, before initiating COBRA for employees on non-FMLA leaves.

5. Returning Employees to Work

Requesting Medical Documentation

The employer must notify employees at the beginning of their FMLA leaves by providing a notification in the Eligibility Notice that a fitness-for-duty certification releasing the employee to work will be required upon his or her return from leave. An employer that fails to provide this notice at the outset of leave loses the opportunity to obtain that certification. See Employee Leaves > FMLA > Eligibility Notice to Employees; Employee Leaves > FMLA > Rights and Responsibilities Notice.

The FMLA also requires any fitness-for-duty certification be limited to the serious health condition for which the leave was taken. Under the FMLA, the employer must accept a valid fitness-for-duty certification from the employee's treating physician. Thus, to ensure that the employee returning from FMLA leave receives a comprehensive fitness-for-duty evaluation, the employer should include the employee's job description with the notice and indicate that the treating physician must evaluate the employee's ability to return to duty using the job description. See Employee Leaves > FMLA > Reinstating Employees Returning from Leave.

Before returning the employee to work from an FMLA leave, the employer may not require the employee to:

  • Obtain a second opinion from another physician; or
  • See the employer's doctor, in lieu of seeing the employee's own treating physician, to work.

The ADA permits an employer to require a fitness-for-duty certification before returning to work from a leave. However, a fitness-for-duty certification may only be required if the employer reasonably believes:

  • An employee's present ability to perform essential job functions will be impaired by a medical condition; or
  • An employee poses a direct threat due to a medical condition.

Any examination must be limited to what is needed to assess the employee's ability to work. See Employee Management > Disabilities (ADA) > Fitness-for-Duty Examinations. The employer should ensure that the information requested relates only to the particular disability and the employee's specific job functions.

Unlike the FMLA, however, an employer is not required to notify an employee that it will require a fitness-for-duty certification at the start of the leave. See Employee Management > Disabilities (ADA) > Medical Examinations/Inquiries.

Practical Example

Barbara has worked for Acme Airlines' accounting department for eight months. While taking a snowboarding lesson, she breaks her leg. She is out of work for six weeks and must use crutches upon her return to work. Here, Acme Airlines does not possess a reasonable belief, based on objective evidence, that her ability to perform her essential job functions will be impaired or that she poses a direct threat due to her medical condition. As a result, Acme Airlines may not require a medical examination.

Practical Example

Jason's employer, Acme Software Co. 123, knows that he has a psychiatric disability. Three months into his employment, he threatens a co-worker and is disciplined. Immediately thereafter, Jason is hospitalized for treatment related to his disability. Given the employer's observation of Jason's behavior, the employer has a reasonable belief, based on objective evidence, that Jason may pose a direct threat due to his condition. Therefore, the employer may request that Jason present a fitness-for-duty certification clearing him to work.

The FMLA and ADA also differ in one other respect when it comes to fitness-for-duty examinations. The FMLA requires the employer to accept a fitness-for-duty certification from the employee's treating physician in all circumstances without resorting to a second or other opinion. However, under certain circumstances involving an ADA analysis, an employer may require an employee to be examined by a health care professional picked by the employer. Specifically, an employer must believe, based on objective evidence, that the employee currently poses a direct threat. If this is the case, the employer may choose a health care provider with expertise as to the employee's specific condition to conduct the examination. This health care provider is tasked with providing a medical assessment allowing the employer to determine the effects of the condition on the employee's ability to perform the job. The employer must pay for the cost of this examination. Additional guidance on this topic is available on the EEOC's website.

Practical Example

Julie is an alcoholic and takes leave from her job as Acme Restaurant's manager to participate in a rehabilitation program for two months. When she is ready to return to work, Julie presents a note from her treating physician stating she has completed the rehabilitation program and is released to return to work and can perform the essential functions of her job. Acme Restaurant has concerns that she may be unable to perform the essential functions of her job. However, absent any objective reasons to doubt her capability, Acme Restaurant cannot second guess her treating physician's release by sending her to a doctor of the restaurant's choice.

Practical Example

After Jason threatened a co-worker and was disciplined, Jason took a leave from Acme Software Co. 123 to receive treatment for his psychiatric disability. Given the situation, Acme Software Co. 123 requested that Jason submit to a fitness-for-duty examination and obtain a release prior to being allowed to come back to work. Jason submits that release and is scheduled to come back to work on Monday. Over the weekend, Jason leaves a voicemail message threatening the same co-worker. The co-worker plays the message for HR. Based on the objective evidence, Acme Software Co. 123 may require Jason to go to a health care professional of its choosing to determine whether Jason is fit to return to work.

Reinstatement to Employee's Prior Job

Under the FMLA, employees generally have a right to reinstatement to the same or an equivalent position, with the same benefits, pay and terms and conditions of employment. See Employee Leaves > FMLA > Reinstating Employees Returning from FMLA Leave.

Similarly, under the ADA, restoration to an employee's prior position will likely be considered a reasonable accommodation unless an employer can establish that doing so poses an undue hardship. See Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process.

Light-Duty Issues

The question of light duty often arises in these three contexts:

  1. The employee is returning from an FMLA leave;
  2. The employee is returning from an ADA leave; and
  3. The employee has not taken leave but has work restrictions.

In these cases, the employee is able to perform some work, although not the work of the employee's regular job.

Employers that offer light duty to FMLA-eligible employees need to keep two important things in mind. First, time spent on light duty does not count against an employee's FMLA leave entitlement. Second, employers may not force FMLA-eligible employees to accept a light-duty assignment rather than provide the employee with FMLA leave. So long as the employee is eligible for the leave, the FMLA requires that the leave be granted.

Light duty under the ADA requires a more individualized analysis. Employers may need to evaluate whether offering light duty would allow an individual with a disability to perform the essential functions of his or her job (and otherwise be a reasonable accommodation). See Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process. An employer should stay away from implementing blanket policies that indicate that no light duty is permitted or offered or that light duty is only offered for workplace injuries. Such policies could be deemed discriminatory against employees with nonwork-related injuries or who are pregnant. An employer has a duty under the ADA to engage in the interactive dialogue with an employee about whether light duty would be a reasonable accommodation under the particular facts and circumstances.

Like any other accommodation, it is important to remember that light duty will not always be reasonable. In some cases, light duty may indeed pose an undue hardship on the employer, particularly if there are no light-duty positions available. Nevertheless, rigid policies that foreclose the opportunity for the dialogue are being met by the EEOC with increasing skepticism and resistance.

6. Providing Leave or Extended Leave as a Reasonable Accommodation

It is clear that providing leave to employees - whether or not the employer is covered by the FMLA and whether or not the employee is eligible for FMLA leave - may be a reasonable accommodation under the ADA for employees with disabilities. The courts and the EEOC have repeatedly reinforced this. However, an employer must remember that leave from work may be a reasonable accommodation under certain circumstances, but not all circumstances. Employers should also consider unpaid leave as a reasonable accommodation.

How Much Leave Is Reasonable?

Under the FMLA, an employer is obligated to provide up to 12 weeks of leave in a 12-month period (and 26 weeks for military caregiver leave). However, once the concept of leave is viewed as a reasonable accommodation under ADA, the amount of leave that an employer may have to provide is highly fact-specific. In making this determination, the employer may have to take into account various factors such as:

  • The person's job duties;
  • The nature of the impairment and its impact on the work;
  • The likelihood that the employee will return to work in the near future;
  • The impact on the employer's operations if leave is provided;
  • The impact on other employees; and
  • The financial resources of the organization.

The employer should carefully manage the process to ensure that the individualized analysis required by the ADA actually takes place and is not undermined by managers who might otherwise say "we don't do that." See Determine if a Request for Leave Qualifies as an ADA Accommodation. Similar to the evaluation of any other potential accommodations under the ADA, employer concerns about cost and/or inconvenience are rarely sufficient to demonstrate undue hardship. See Employee Management > Disabilities (ADA) > Undue Hardship.

The amount of leave that may be a reasonable accommodation has gained a great deal of attention from the EEOC in recent years. While both the courts and the EEOC acknowledge that there is no set amount of leave that will be reasonable under all circumstances, the EEOC has taken a strong stance against rigid policies that set specific time limitations on the amount of leave employees may be entitled to take.

The most common example of such policies are what employers routinely refer to as neutral absence control policies or no-fault attendance policies, whereby employees are terminated after a certain number of absences or time off of work, regardless of the reason. The FMLA already prohibits including FMLA absences in these calculations. Now, given the position currently being taken by the EEOC, absences requested as a reasonable accommodation may also need to be excluded from these absence policies.

In particular, the EEOC takes the position that these types of policies - which establish a cap on leave beyond which employees are automatically or administratively terminated - are violations of the ADA because they prevent the required interactive dialogue under the ADA. To the extent that an employer has such a policy, it may need to be modified to incorporate steps to assess whether an individual with a disability should be afforded additional leave as a reasonable accommodation. When an employee on leave is nearing his or her scheduled return date under such a policy, the employer should communicate with the employee to see whether he or she needs any additional unpaid leave as a reasonable accommodation for a disability.

See the EEOC's guidance on Employer-Provided Leave and the Americans with Disabilities Act.

Employers in Illinois, Indiana and Wisconsin should be aware that the 7th Circuit Court of Appeals has determined that a multi-month leave of absence is not a reasonable accommodation under the ADA. In holding that an employee who had exhausted his 12 weeks of FMLA leave was not entitled to an additional two months of leave to recover from surgery under the ADA, the court reasoned that the ADA "is an antidiscrimination statute, not a medical-leave entitlement…the term 'reasonable accommodation' is expressly limited to those measures that will enable the employee to work. An employee who needs long-term medical leave cannot work and thus is not a 'qualified individual' under the ADA." The court rejected the EEOC's argument that the duration of the leave should not matter if the employee can do the job when he or she returns. If that were the case, the court wrote, the ADA would be "transformed into a medical-leave statute - in effect, an open-ended extension of the FMLA." However, a brief period of leave - "a couple of days or even a couple of weeks" - could be reasonable in some circumstances. See Severson v. Heartland Woodcraft, Inc., +2017 U.S. App. LEXIS 18197 (7th Cir. 2017); Byrne v. Avon Products, Inc., +328 F.3d 379 (7th Cir. 2003).

Practical Example

Acme Records has a no-fault attendance policy that provides that employees who are inactive for six months for any reason will be administratively terminated, but are eligible to reapply for any vacant positions in the future. Dan has exhausted his entire 12 workweeks of FMLA leave (approximately three months) for a debilitating back issue. His physician now indicates that he needs an additional surgery. The doctor expects the full recovery period to be six to seven months and that Dan has a very strong likelihood of returning to work at that point.

Under Acme Records' policy, Dan's employment would be terminated three months into this additional leave period. The FMLA does not permit Acme Records to count the first three months of FMLA time as inactive time under the policy. However, even assuming the FMLA time is not counted, Dan still stands to miss work in excess of that allowed by the policy. According to the EEOC, terminating Dan without engaging in the interactive process about whether Acme Records can provide him the requested leave as a reasonable accommodation - and the very fact-specific analysis that goes along with it - violates the ADA.

See also How to Engage in and Properly Document the Interactive Process Under the ADA.

Significantly, the EEOC has not said that the written policy needs to provide for a longer period (much more generous policies than the one in the example above have been found to still violate the ADA), but simply that the policy must be flexible enough to allow employers and their employees to have the conversation about whether a certain leave request can be accommodated without causing undue hardship. In fact, both the courts and the EEOC have long taken the position that modifying these types of policies for individuals with disabilities may itself be a form of ADA reasonable accommodation.

Employers should consider working with legal counsel to review employer policies for language allowing this type of flexibility. Policies potentially requiring review may include the employer's:

Employers should also consider working with legal counsel to develop coordinated, centralized processes for leave and accommodation requests so that such decisions are not being made in a vacuum without the benefit of HR's input.

Drawing the Line on Indefinite Leaves

Although these types of policies are currently disfavored, HR should also remember that courts have also repeatedly held that indefinite leaves, with no reasonable likelihood of return, are not reasonable. This reinforces the idea that individualized analysis is required under the ADA for each particular leave request. In addition, employers are not required to bear the entire burden of accommodation themselves. Employees requesting leave extensions should be required to:

  • Communicate with a person designated by the employer;
  • Provide appropriate medical documentation; and
  • Comply with the processes set forth by the employer in seeking, taking and returning from these types of leaves.

Preparing for What Lies Ahead

There is no question that the EEOC is currently taking an aggressive stance and enforcing these employer obligations under the ADA, most recently via a series of multi-million dollar lawsuits, sometimes involving more than 100 former employees.

An employer's rule of thumb in light of these continuing developments should be to carefully evaluate any adverse employment decisions where an employee's individual absences and/or blocks of leave are a consideration - even if there are other reasons as well. This does not mean that such decisions cannot ever be made. However, the employer should first carefully evaluate its obligations to employees under the FMLA, ADA, state law and the employer's policies to determine if an employee with a serious health condition and/or disability has received all of the protections required by law.

7. Maintaining Confidentiality of FMLA and ADA Paperwork

Both the FMLA and ADA require that employers maintain documents containing an employee's medical information in confidential medical files. Examples of this type of information may include:

  • FMLA certification of health care provider and fitness-for-duty forms;
  • Requests for accommodation;
  • Notes and letters from employees' physicians;
  • Reports of injury/illness and status reports following workers' compensation injuries;
  • Reports containing medical information included with employee drug test results; and
  • Results of post-offer physicals.

All such documentation should be kept in separate files, away from other employee personnel information. See Employee Leaves > FMLA > FMLA Recordkeeping Requirements. The ADA also requires that these separate files of medical information:

  • Be in locked files;
  • Be treated as confidential medical information; and
  • Only be shown to those employees with a need to know or have access to that information.

See Employee Management > Disabilities (ADA) > ADA Recordkeeping. The FMLA extends these requirements to FMLA documents when the employee also suffers from an ADA disability. Therefore, as a best practice, HR should consider maintaining all employee medical information according to the ADA's higher standards if the employer is not already doing so.

Association Discrimination

The ADA contains a provision that prohibits employers from discriminating against an employee based on the employee's relationship or association with another person with a known disability. The EEOC explains that this protection's purpose is to ensure that employers are not discriminating against employees based on stereotypes or unfounded concerns about the employee's relationship with an individual with a disability (most commonly a family member). More guidance on this topic is available by clicking here.

In addition to providing leave to an employee for his or her own serious health condition or disability, the FMLA also provides leave for a variety of other reasons, including to care for a parent, spouse or child with a serious health condition. By definition, employees requesting FMLA leave for this purpose are putting their employers on notice of a family member's health condition, which may also be an ADA disability. This would extend the ADA's "association" protection to these employees. As with all other employment decisions, the employer needs to be vigilant about monitoring the reasons for employment decisions and making certain decision-makers do not consider an employee's association with a person with a disability in making a decision adverse to the employee. Similarly, the employer should be cautious about the collection and storage of any family medical history information, which may be protected by the Genetic Information Nondiscrimination Act (GINA).

See Employee Management > Disabilities (ADA) > What Is a Disability?; Employee Leaves > FMLA > Actions Prohibited by the FMLA; Employee Management > EEO - Discrimination > Genetic Information - Genetic Information Nondiscrimination Act.

While the ADA prohibits discrimination against an employee for being associated with an individual with a disability, it does not require employers to reasonably accommodate employees who are not themselves disabled, but who are associated with an individual with a disability. In other words, the employer must consider leave as a possible reasonable accommodation only for an employee's own disability. Only the FMLA or other similar laws providing time off to employees for family member illnesses - and not the ADA - requires an employer to provide time off to employees who have family members with disabilities.

Practical Example

Dave has exhausted his FMLA leave and requests that Acme Retail Store, his employer, provide additional leave beyond what it provides for in its policies. The requested leave is so that Dave can care for his child with a disability. Although Acme Retail Store may not consider Dave's obligations to his child in making any employment decisions (the nondiscrimination requirement), it is not obligated to provide that additional leave as a reasonable accommodation under the ADA. Specifically, this is because it is not the employee (Dave) who suffers from the disability (though Acme Retail Store should carefully evaluate Dave's request under its other policies and state law where applicable).

FMLA Leave to Care for Adult Children With Disabilities

The FMLA provides leave for eligible employees to, among other things, care for a son or daughter with a serious health condition. The FMLA defines son or daughter as someone who is either under 18 years of age or over 18 and incapable of self-care due to a mental or physical disability. The ADA broadly defines disability. See Employee Management > Disabilities (ADA) > What Is a Disability? Because the FMLA relies on the ADA's definition, an employer must carefully evaluate employee requests for FMLA leave to care for adult children with disabilities, remembering that an adult child is now far more likely to qualify as disabled under the ADA.

The obligation to provide an employee leave to care for an adult child who is disabled only refers to providing FMLA leave for the serious health condition of a child with a disability. The ADA does not require employers to provide extended leaves for employees to care for adult children with disabilities. The ADA's reasonable accommodation provision only applies to employees who require accommodation for their own disabilities (subject to any state law exceptions). See Employee Management > Disabilities (ADA) > Association Discrimination.

Infertility and the FMLA/ADA

When Congress expanded the ADA's protections, it included a list of bodily functions that, if impaired, would automatically qualify as a disability under the Act - one of which was reproductive functioning. See Employee Management > Disabilities (ADA) > What Is a Disability? As a result, infertility (impairment in reproductive functioning) is considered a disability that entitles employees who suffer from it to ADA protections. Therefore, regardless of whether a particular individual's challenges with infertility would qualify as a serious health condition triggering FMLA obligations, the employee may still be entitled to leave for this condition under the ADA. As a result, employers should carefully evaluate leave requests for these types of conditions by engaging in an interactive dialogue with the requesting employee.

The FMLA, the ADA and the Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) amended Title VII of the Civil Rights Act of 1964 to protect employees from discrimination based on pregnancy, childbirth or related medical conditions. Under the PDA, employer policies and practices should provide the same benefits to women who are pregnant as they do for employees with other types of medical conditions. See Employee Management > EEO - Discrimination > Pregnancy - Pregnancy Discrimination Act.

Under the FMLA, an eligible employee who works for a covered employer is entitled to up to 12 workweeks of leave for pregnancy, childbirth or related medical conditions. FMLA leave related to pregnancy covers time off not only following the birth of a child, but also for prenatal care, severe morning sickness and pregnancy-related conditions. See Employee Leaves > FMLA > Qualifying Reasons for Leave.

An employee eligible for FMLA leave under these circumstances is also entitled to protection from discrimination under the PDA. However, the PDA applies to all employers with 15 or more employees (as opposed to 50 or more employees under the FMLA). Further, the PDA has no individual eligibility requirements such as those under the FMLA. As a result, the PDA will apply to smaller employers and to employees who might not otherwise be covered by the FMLA.

In the leave context, an employer must analyze requests for maternity leave or leave prior to the birth of the child for related medical conditions under the same terms and conditions it applies to employees with other types of medical conditions. The employer must ensure that these employees are being provided the leave they are entitled to under the FMLA (if any). In addition, the employer must also make certain the same type of medical leave provided to nonpregnant employees is also provided to pregnant employees. A number of states have enacted legislation in this area, as well. Therefore, the employer should cross reference state law requirements, as state laws often provide for leave in excess of that provided under the FMLA. Leave required under state law may be provided to an employee whether or not the employee already has FMLA rights. See Employee Leaves > Other Leaves > State Requirements.

In July 2014, the EEOC issued a new Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance. It was the first comprehensive update of the EEOC's guidance on the subject of discrimination against pregnant workers since 1983. The Enforcement Guidance emphasizes that pregnant employees must be afforded the same rights, privileges and benefits as "others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or related medical conditions." Thus, in determining whether discrimination has occurred, the EEOC will look to nonpregnant employees as comparators with respect to an employer's application of reasonable accommodation, including light duty and leave.

A 2015 US Supreme Court decision rejected the employee's (and the EEOC's) position that the PDA requires an employer who accommodates nonpregnant employees with work limitations to accommodate pregnant employees who are similar in their ability or inability to work. See Young v. UPS, +2015 U.S. Lexis 2121 (U.S. March 25, 2015). In Young, the Court explained that just because an employer provides one or two workers with an accommodation does not mean it must provide similar accommodations to all pregnant workers, regardless of the nature of their jobs. The Court also specifically declined to rely upon the EEOC's Enforcement Guidance, finding it was too broad and at odds with the intent underlying the PDA. While the Court declined to impose a blanket accommodation requirement for pregnant employees, workplace policies that provide accommodations to some workers but exclude pregnant employees may nonetheless violate the PDA. An employer may defend its policies by showing it had a legitimate, nondiscriminatory reason for refusing to accommodate a pregnant employee, but the employee then has the opportunity to show that the reason was a pretext for discrimination.

In response to Young, the EEOC issued a revised and updated version of the Enforcement Guidance on June 25, 2015. The new version removed the provisions that purported to mandate accommodations for pregnant women where nonpregnant, similarly abled or disabled individuals had received accommodations, regardless of whether the accommodations resulted from the ADA, an internal policy that prioritizes workplace injuries over other physical limitations or an employer's discretion. The EEOC also revised the provisions governing light duty to align with the Young decision, such that it no longer provides that pregnant employees are entitled to light-duty work if other nonpregnant employees received light-duty work. An employee must show that an employer's denial of light-duty work, where the employer has put forth a legitimate, nondiscriminatory reason for the denial, was a pretext for pregnancy discrimination.

With respect to leave, the Enforcement Guidance reiterates that medical and sick leave policies must be applied uniformly to pregnant and nonpregnant employees. Further, the EEOC takes the position that sick or medical leave policies that are capped at a predetermined number of days may disparately impact pregnant women. Even if a pregnant employee has a pregnancy-related impairment that does not rise to the level of an FMLA-qualifying serious health condition, she may nonetheless be eligible for medical or sick leave under the employer's own policies or as a reasonable accommodation under the ADA.

While pregnancy itself is not considered a disability under the ADA, the Enforcement Guidance explicitly recognizes that pregnancy-related impairments, even some that arise from a healthy pregnancy, may nonetheless qualify as disabilities for purposes of the ADA, which gives rise to the need for reasonable accommodations. According to the Enforcement Guidance, "[a]n impairment's cause is not relevant in determining whether the impairment is a disability. Moreover, under the amended ADA, it is likely that a number of pregnancy-related impairments that impose work-related restrictions will be substantially limiting, even though they are only temporary." See Employee Management > Disabilities (ADA) > ADA Interplay.

Employers should review and implement the EEOC's suggested best practices, which were not changed in the updated Enforcement Guidance, to avoid pregnancy-related PDA and ADA violations. The Enforcement Guidance identifies several best practices in each of the following categories:

  • Antidiscrimination policies and procedures;
  • Hiring, promotion and other employment decisions;
  • Leave and other benefits;
  • Terms and conditions of employment; and
  • Reasonable accommodation.

Pregnancy Accommodation Laws

Mimicking the well-established requirement that employers provide reasonable accommodations to individuals covered under the ADA, a handful of jurisdictions now require employers to provide similar accommodations to pregnant employees (e.g., Alaska, California, Connecticut, Hawaii, Louisiana, Maryland, New Jersey, New York City, Philadelphia and Texas).

The requirement to provide reasonable accommodations for pregnant employees has become more established in recent years. Examples of reasonable accommodations may include:

  • Allowing restroom breaks or breaks to facilitate increased water intake;
  • Assistance with manual labor; and
  • Light duty assignments or transfers to less strenuous jobs.

A leave of absence may also be a form of reasonable accommodation. An employer covered under the FMLA may be able to count this leave time against an employee's FMLA leave entitlement. However, an employer must be cautious in designating a leave of absence as FMLA leave, as a healthy, nondisabling pregnancy is not a qualifying reason for leave under the FMLA.

The Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination in employment based on genetic information and family medical history. GINA also restricts employers from acquiring or sharing such information. See Employee Management > EEO - Discrimination > Genetic Information - Genetic Information Nondiscrimination Act. Employers may take several important steps to ensure that GINA obligations are met in the administration of FMLA leaves.

First, employers should ensure that the current FMLA health care provider certification forms they use contain the EEOC's safe harbor language designed to minimize the likelihood that physicians will improperly disclose genetic information in the completion of those forms. The language to be included on those forms states:

THE GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (GINA) PROHIBITS EMPLOYERS AND OTHER ENTITIES COVERED BY GINA TITLE II FROM REQUESTING OR REQUIRING GENETIC INFORMATION OF AN INDIVIDUAL OR FAMILY MEMBER OF THE INDIVIDUAL, EXCEPT AS SPECIFICALLY ALLOWED BY THIS LAW. TO COMPLY WITH THIS LAW, WE ARE ASKING THAT YOU NOT PROVIDE ANY GENETIC INFORMATION WHEN RESPONDING TO THIS REQUEST FOR MEDICAL INFORMATION. "GENETIC INFORMATION," AS DEFINED BY GINA, INCLUDES AN INDIVIDUAL'S FAMILY MEDICAL HISTORY, THE RESULTS OF AN INDIVIDUAL'S OR FAMILY MEMBER'S GENETIC TESTS, THE FACT THAT AN INDIVIDUAL OR AN INDIVIDUAL'S FAMILY MEMBER SOUGHT OR RECEIVED GENETIC SERVICES, AND GENETIC INFORMATION OF A FETUS CARRIED BY AN INDIVIDUAL OR AN INDIVIDUAL'S FAMILY MEMBER OR AN EMBRYO LAWFULLY HELD BY AN INDIVIDUAL OR FAMILY MEMBER RECEIVING ASSISTIVE REPRODUCTIVE SERVICES.

Both GINA and the ADA apply to smaller employers with 15 or more employees and to employees who have not met FMLA eligibility requirements. Thus, this same notice language should also be included in ADA medical certifications for an accommodation.

Additionally, employers should also be sure that they are providing such notices to their own doctors who provide post-offer/preemployment physicals, fitness-for-duty/return-to-work physicals and the like. Finally, and in line with existing ADA requirements and related FMLA principles, employers should maintain all employee medical information in separate, locked files, away from personnel information, and only shared on a need-to-know basis. This ensures that to the extent genetic information is contained in either existing medical files or in documents received in the future, it is protected and not shared with others in violation of GINA. See Employee Leaves > FMLA > FMLA Recordkeeping Requirements; Employee Management > Disabilities (ADA) > ADA Recordkeeping.

Same-Sex Marriage Laws

On June 26, 2013, the Supreme Court in United States v. Windsor, +2013 U.S. LEXIS 4921, invalidated Section 3 of the Defense of Marriage Act (DOMA), which defined a spouse as a person of the opposite sex who is a husband or a wife. Before Windsor, DOMA's definition of spouse applied to the FMLA, so same-sex married couples were not allowed to take FMLA leave to care for their spouse. Post-Windsor, employers should interpret the word spouse in accordance with the FMLA regulations.

On March 27, 2015, the DOL issued a Final Rule amending the FMLA's definition of spouse, making FMLA spousal leave eligibility universal for all legally married same-sex spouses. The new definition looks to the law of the state in which the marriage was entered into, as opposed to the law of the state in which the employee resides. This "place of celebration" rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent FMLA family leave rights no matter where they live. Prior to the change, the FMLA regulations defined spouse as "a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized." In other words, an employee's right to take FMLA leave to care for his or her same-sex spouse was based on whether the couple's marriage was recognized in their state of residency.

On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Accordingly, same-sex couples may be lawfully married in any state and are entitled to FMLA spousal leave benefits. As long as a same-sex couple is legally married, they will be able to:

  • Take FMLA leave to care for their spouse with a serious health condition;
  • Take qualifying exigency leave due to their spouse's covered military service; or
  • Take military caregiver leave for their spouse.

Couples in civil unions and domestic partnerships remain ineligible to use FMLA family leave to care for a partner. The couple must be legally married to be considered spouses for FMLA purposes.

Apart from FMLA considerations, if an employer has employees with same-sex spouses, the employer should look at existing policies that provide for leave based on spousal relationships, such as non-FMLA leave, bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.

In addition, an employer should be careful if it seeks to confirm an employee's same-sex spousal relationship to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).

The Uniformed Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides certain leave, benefits and reinstatement rights to employees who serve in the military. USERRA applies to all public and private employers, without regard to the size of the workforce. See Employee Leaves > USERRA. Therefore, USERRA applies uniformly to employers and employees covered by the FMLA and to those employers and employees not otherwise protected by the FMLA. While USERRA contains numerous substantive rights outside the scope of this section, leave taken under USERRA is relevant in several ways to an employee's FMLA rights.

Employees who serve in the military and take USERRA leave are credited the hours they would have worked toward the FMLA's 1,250-hour requirement. This hours' credit is calculated by using the employee's premilitary service work schedule and crediting the employee with those hours for the entire time the employee serves in the military. As such, an exempt employee who took leave under USERRA for a year would be presumed to have met the FMLA's 1,250-hours-worked requirement, although the employee did not work for the employer for the entire 12-month period in question.

The FMLA contains two provisions that provide for military family leave - neither of which cover an employee's own serious health condition as a result of military service. Instead, USERRA addresses this situation directly. Employees who are hospitalized or convalescing from a service-related injury or illness may be entitled to up to two years of leave prior to being required to return to work (in addition to the up to five years of leave provided for the military service itself).

Time spent on leave under USERRA - whether service time or hospital/convalescing time - does not count as FMLA time. Employers may therefore be required to extend FMLA leave to an employee who has just returned from USERRA leave, assuming the employee has an FMLA-qualifying event and is otherwise eligible.

The Fair Labor Standards Act

Generally speaking, the Fair Labor Standards Act (FLSA) governs the status of employees, as exempt or nonexempt, and provides rules for employers about the payment of wages and hours worked. While the FLSA and FMLA outline entirely different types of employee rights, their protections occasionally intersect.

FLSA Principles Affecting Employee Eligibility for FMLA

Hours Worked Requirement

When determining employee eligibility under the FMLA, the calculation of whether the employee has worked the required 1,250 hours in the past 12 months is determined using FLSA rules about tracking hours worked. In other words, if the employee actually worked 1,250 hours - regardless of what he or she was scheduled to work - then the employee has met the criterion. See Employee Compensation > Hours Worked.

Presumption of 1,250 Hours If No Time Records

An employee is presumed to have met the 1,250 hours of service requirement if he or she has been employed for at least 12 months and:

  • The employer does not track hours worked because the employee is exempt from the FLSA's overtime provisions; or
  • The employer otherwise fails to maintain adequate time records for the employee.

See Employee Leaves > FMLA > Determining Employee Eligibility for FMLA Leave. To deny leave based on this hours criterion, the employer must prove that the employee did not work the required 1,250 hours.

FLSA Principles Affecting the Amount of FMLA Leave Available

The FMLA provides that employees are entitled to a maximum of 12 workweeks of leave (or 26 workweeks for military caregiver leave). Leave taken in blocks of time is relatively easy to track (e.g., one week at a time). However, when employees request to take FMLA leave intermittently or on a reduced schedule basis, they are entitled to 12 workweeks of leave based on their own particular work schedule. In other words, the term "workweek" is unique to each particular employee and is governed by his or her usual or normal schedule of hours per week.

Practical Example

Linda, who regularly works 40 hours per week, is entitled to up to 480 hours of intermittent/reduced schedule leave (40 hours per week × 12 workweeks).

Practical Example

Christian, who regularly works 30 hours per week, is entitled to up to 360 hours of intermittent/reduced schedule leave (30 hours per week × 12 workweeks).

Practical Example

Debbie, who regularly works 50 hours per week, is entitled to up to 600 hours of intermittent/reduced schedule leave (50 hours per week × 12 workweeks).

For exempt employees whose time records are not regularly maintained, the number of hours available for intermittent or reduced schedule leave must be agreed to between the employer and the employee, in writing. The employer may not simply assume the exempt employee works 40 hours per week and automatically provide 480 hours of leave without first conferring with the employee on this issue.

FLSA Principles Affecting Employee Wages or Salary While on FMLA Leave

The FMLA provides unpaid leave. While the FLSA contains certain rules about payment of wages and salaries, those rules generally support the designation of FMLA leave as unpaid.

Employers may permit - or require - employees to substitute available paid time off (vacation, sick leave, PTO) for unpaid FMLA leave in order to continue receiving wages or a salary. Public employers that utilize comp time in lieu of paying overtime may also require employees to take available comp time while on FMLA leave. Receiving these types of payments does not extend the length of the leave, but instead merely provides a mechanism for employees to receive some or all of their wages or salary while on leave.

Employees who are nonexempt under the FLSA are entitled to payment for all hours worked. When these employees go out on FMLA leave (whether in blocks of time, intermittently or on a reduced schedule), they are not entitled to be paid for the time spent on leave, i.e., it is not time worked.

Exempt employees who take leave under the FMLA fall under a different rule. Generally, for most exempt employees, the FLSA requires that:

  • The employee be paid on a salary basis; and
  • The employee's pay cannot fluctuate based on the number of hours worked per week.

The Department of Labor (DOL) regulations on the FLSA provide very few exceptions to this rule. Employers that make deductions from pay prohibited by the FLSA regulations may compromise the exempt status of those employees. Importantly, however, the FLSA regulations do provide an exception to this rule for employees on FMLA leave. Specifically, salaried, exempt employees who take FMLA leave are not entitled to be paid for their time spent on leave. As a result, employers may deduct from the employee's predetermined salary any hours or days of FMLA leave taken by the exempt employee. This will not jeopardize the employee's exempt status. This exception to the salary basis rule only applies to FMLA leaves. For non-FMLA leaves (under the ADA, employer policy, etc.), the FLSA regulations provide no such exception. Thus, employers must carefully evaluate the DOL's FLSA exceptions in light of other leave laws before making deductions for absences under those circumstances. See Employee Compensation > Employee Classification > Permissible Deductions From Pay.

Nursing Mothers Under the FMLA and FLSA

In passing the Patient Protection and Affordable Care Act (ACA) in 2010, Congress amended the FLSA to require that employers provide reasonable amounts of unpaid break time and a private area for nonexempt, nursing mothers to express breast milk. The protection applies to nursing mothers for up to one year following the birth of the child. Female employees returning from FMLA leave taken for the birth or placement of a child may still be nursing upon their return to work. As a result, employers should be responsive to requests from these employees regarding a time and space for them to express breast milk during the work day. Further, to the extent an employee uses this break time to express breast milk by feeding her child, the time spent expressing breast milk might be considered FMLA leave to bond with the child. See Employee Compensation > Hours Worked > Breastfeeding Breaks.

Practical Example

Amy takes eight weeks of FMLA leave from her job with Acme Advertising Agency to bond with her new baby. When Amy returns to work, she wants to bring the baby to work during the day so that she can directly feed the baby instead of expressing breast milk into a container. When she requests to do this, she explains she wishes to solidify her bond with the baby through breastfeeding. Putting aside whether the employer must grant her request to bring the baby to work, the time spent feeding the baby at work could be considered bonding time protected by the FMLA.

The ACA's amendment to the FLSA also imposes certain requirements on the private area provided to an employee to express breast milk. The space:

  • May not be a bathroom;
  • Must be shielded from view;
  • Must be free from intrusion from co-workers and the public;
  • Must be available when needed; and
  • Must be functional for expressing breast milk.

Where state law provides greater protections, employers should comply with the provisions most favorable to the employee.

An employer is not required to compensate nursing mothers for breaks taken for the purpose of expressing breast milk. However, if an employer already provides compensated breaks, an employee who uses that break time to express milk must be paid in the same way that other employees are paid for break time. More information on this topic is available on the DOL's website.

Workers' Compensation Laws and Programs

Employees who suffer on-the-job injuries often require time off from work. While workers' compensation coverage provides medical benefits for the injury, as well as wage replacement under certain circumstances, there is no separate leave entitlement under most workers' compensation plans. Employees who require leave as the result of an on-the-job injury may also qualify as having a serious health condition under the FMLA. Further, the employee may possibly even be considered disabled under the ADA. Therefore, employers should evaluate the need for time off from work following an on-the-job injury under both laws, as well as applicable state law. See Employee Management > Disabilities (ADA); Risk Management - Health, Safety, Security > Workers' Compensation; How to Handle the Interaction of the FMLA, ADA and Workers' Compensation Laws.

The employer should keep the following points in mind when administering FMLA leaves for employees with on-the-job injuries. First, FMLA and workers' compensation run concurrently. When employees take leave from work for an on-the-job injury, employers should be counting that time against the employee's 12 workweeks of FMLA entitlement, if the employee is otherwise eligible for FMLA leave.

Second, time spent on leave for an on-the-job injury still counts toward the employee's 12 months of service requirement under the FMLA. Assuming the employee has already met the other FMLA eligibility requirements, an employee could actually become eligible for FMLA leave in the middle of a non-FMLA leave following an on-the-job injury. If non-FMLA leave converts to FMLA leave in this manner, the employee is entitled to his or her full 12 workweeks of leave for the serious health condition (if the serious health condition requires that much leave). Any leave provided by the employer prior to the employee becoming eligible for FMLA leave does not count toward the FMLA 12-week entitlement.

Employers should use caution when employees exhaust their FMLA leave following an on-the-job injury, but still cannot return to work. An employer's obligations in this situation may be governed by:

  • The employer's policy;
  • State workers' compensation laws;
  • The ADA; or
  • Other legal obligations.

Prior to taking any employment action against employees in this situation, the employer should consult with legal counsel about available options.

Light duty may be an option for employees injured on the job who cannot return to their regular jobs. Under the FMLA, an employer cannot force an employee to accept a light-duty position. Rather, an employee may take FMLA leave - intermittently or on a reduced schedule if medically necessary or in extended blocks of time - if the employee is otherwise eligible for FMLA leave. However, if an employee whose physician returns the employee to work in a light-duty position refuses such a position offered by the employer, he or she may be ineligible for continued wage replacement benefits under state law. As a result, an employee may transition from a partially paid leave (workers' compensation routinely pays approximately two-thirds of an employee's pre-injury earnings) to a fully unpaid leave.

Employers that receive sufficient medical information through the workers' compensation process to designate leave following an employee's on-the-job injury as FMLA-eligible need not require the employee to also complete the initial FMLA certification of health care provider. However, the employer's obligations to fulfill the remaining FMLA notice requirements remain unchanged. +29 C.F.R. § 825.306(c).

Employees who are on FMLA-covered leave following an on-the-job injury, and who are also receiving wage replacement benefits under an employer's workers' compensation program, may agree with their employer (if state law permits) to substitute available paid time off (vacation, sick, PTO) in order to supplement their workers' compensation payments. The payment of workers' compensation wage replacement benefits and employer paid time off benefits may equal no more than the employee's pre-injury earnings.

Many employers have a policy - whether in writing or as a practice - that requires employees who are injured on-the-job to return to work with a full release, without restrictions. In other words, employees who recover from their injuries sufficiently to enable them to return to work, but who have certain medical restrictions, are not permitted to return to work. For the same reasons that "no-fault" attendance policies are problematic under the ADA, these types of "full release only" policies also pose a problem. By refusing to allow an employee to return to work with restrictions, an employer has failed to make an individualized determination about whether it can reasonably accommodate those restrictions under the ADA. Thus, an employer must:

  • Evaluate the substance of those restrictions;
  • Evaluate the duration of those restrictions;
  • Evaluate the nature of the employee's individual job; and
  • Discuss those limitations with the employee.

It is possible that those restrictions cannot be accommodated, but by having a rigid, inflexible policy in place that prevents the dialogue, the EEOC views the employer as failing to fulfill its obligation to engage in the ADA interactive process. See Employee Management > Disabilities (ADA).

Several states and municipalities require private employers to provide paid sick leave to eligible employees. See Paid Sick Leave by State and Municipality. When an employer operates or has employees in such a jurisdiction, the employer needs to carefully check the law's requirements. For an employer that operates in multiple locations that have paid sick leave laws, this can be a daunting task, as each law has its own standards regarding which employees are covered, which employers must comply, how employers must comply and more. While many of the laws share commonalities, they all have unique provisions that force employers to monitor changes not only to their state laws, but also to their local laws.

After an employer understands the paid sick leave law(s) requirements and/or how the paid sick leave laws interact, they must next make sure they understand all the other overlapping federal, state and local laws governing family and medical leave, pregnancy leave and disability discrimination laws. Questions such as whether paid sick leave may run concurrently with these other laws or whether it may be "stacked" on top of another type of leave need to be answered each and every time an employee requests leave and/or an accommodation. While some of these laws may run at the same time, others may not. An employer should remain alert to the various types of leave available and always provide the employee with the greatest benefit. An employer should also take care to track employees' leaves of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

Benefits and Privacy Under ERISA, COBRA, ACA and HIPAA

The Employee Retirement Income Security Act

The Employee Retirement Income Security Act (ERISA) is a comprehensive law governing health and welfare benefit plans. When an employee takes FMLA leave, particularly for his or her own or a family member's serious health condition, coverage under the employer's health benefit plans may be even more important than it was prior to his or her leave. While ERISA contains numerous obligations outside the scope of this review, the employer should ensure that benefit plan documents, employer policies and actual practices are consistent when employees:

  • Are out on leave;
  • Return from leave; or
  • Cannot return from FMLA leave (or other types of leave described in this document).

ERISA also contains specific requirements regarding the continuation of benefits, the portability of health coverage and the privacy of personal health information. See Employee Benefits > Regulation of Welfare Plans.

The Consolidated Omnibus Budget Reconciliation Act

COBRA During FMLA Leave

The Consolidated Omnibus Budget Reconciliation Act (COBRA), which is part of ERISA, generally gives employees the right to continue their group health coverage at the employer's group rates. The maximum period of continuation coverage depends on the qualifying event but, in general, continuation coverage is provided for up to 18 months. Such group health coverage continuation occurs when an employee becomes ineligible for coverage under the employer's plan(s) following a qualifying event (e.g. termination of employment, reduction of hours) making him or her lose coverage under the employer's plan. See Health Care Continuation (COBRA): Federal. When this occurs, employees must pay 100 percent of the premium for their coverage. During FMLA leave, COBRA rights are not triggered because the FMLA requires employers to maintain benefits coverage under the same terms and conditions as when the employee was working. See Employee Benefits > Employee Benefits > Health Care Continuation (COBRA) > FMLA and COBRA.

COBRA After FMLA Leave (or When FMLA Does Not Apply)

Once FMLA leave is exhausted - or if FMLA obligations are not triggered - an employee on leave may become ineligible for continued health benefits under the terms of the benefit plans. As a result, the employee may only be eligible to continue health care coverage through COBRA, if at all. Depending on the particular plan's language, employees may be required to transition to COBRA immediately following expiration of their FMLA leave, or at some later date. It is not uncommon, however, for benefit plans that have hours of work requirements (e.g., an employee must work 30 or more hours per week to be covered under group health benefits) to include a carve-out for employees on approved leaves of absence. Employer policies may also address this issue. Thus, the employer must ensure that:

  • Its policies are consistent with all plan documents;
  • Only those employees entitled to coverage under the applicable benefit plans remain on active status; and
  • All other employees who have not returned to work receive notice of their COBRA rights in accordance with the law.

The FMLA guarantees that an employee's health benefits during leave continue on the same terms as if the employee was actively working. This includes the employee's obligation to continue to pay his or her portion of the premiums. Employees who fail to make such payments during their FMLA leave for at least 30 days may lose their health coverage following at least 15 days' notice that the benefits will be canceled for nonpayment. In this situation, the benefits coverage will lapse. Importantly, however, such a termination is not a COBRA-qualifying event, so the employee is not entitled to elect COBRA. Finally, even if an employee's benefits terminate while on FMLA leave, employers have an absolute duty to reinstate that employee to the group health plans immediately upon the employee's return to work, without waiting periods, physicals or similar hurdles, regardless of the language in the plan document(s).

The Affordable Care Act

The Affordable Care Act (ACA) requires an employer with 50 or more full-time employees, including full-time equivalent employees (FTEs), to either offer minimum essential coverage (MEC) to full-time employees and their dependents or pay a penalty.

The "no coverage" penalty is imposed if the employer does not offer its full-time employees (and their dependent children to age 26) the opportunity to enroll in MEC and at least one full-time employee receives a premium assistance tax credit to purchase health insurance through the health insurance Marketplace (also known as the Exchange). The no coverage penalty amount (set annually) is multiplied by the number of full-time employees, excluding the first 30 employees. For 2015 only, an employer could subtract the first 80 employees.

If the employer offers the opportunity to enroll in MEC to at least 95 percent (70 percent for 2015 only) of its full-time employees (and their dependent children to age 26) the employer may still incur an unaffordable/inadequate coverage penalty if it offers coverage that:

  • Does not provide minimum value (i.e., cover 60 percent of medical costs); or
  • Is unaffordable (i.e., exceeds 9.5 percent of the employee's wages for self-only coverage) and has at least one low-income full-time employee who is eligible for a tax credit to purchase health insurance through the Marketplace.

The unaffordable/inadequate coverage penalty amount (also set annually) is multiplied by the number of full-time employees receiving subsidized coverage through the Marketplace. This penalty may not exceed the no coverage penalty.

Calculating the Number of Full-Time Employees Under ACA

Determining the size of an employer's workforce under the ACA can be complicated, especially if the employer has a parent company, subsidiary or affiliate. Companies that have a common owner are generally combined for the purpose of determining whether they are covered by the ACA. Common ownership can also affect the amount of penalties because it can affect the number of employees that are included in the penalty calculation. The basic rules are as follows:

  • An employer with 50 or more full-time employees including FTEs is an applicable large employer (ALE) covered by the ACA.
  • A full-time employee is an employee who works an average of at least 30 hours of service per week or at least 130 hours of service per calendar month.
  • FTEs equal the number of full-time employees (those working 30 or more hours per week) plus the number of hours worked in a month by part-time employees (those working fewer than 30 hours per week) divided by 120. See also How are full-time equivalent employees (FTEs) calculated under the Affordable Care Act?
  • Hours of service are determined based on hours for which an employee is paid or entitled to payment and includes hours worked and hours for which payment is due for vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or other leaves of absence.
    • For hourly employees, an employer must calculate actual hours of service from records of hours worked and all types of paid time off.
    • For nonhourly employees, an employer may count hours of service under any of the following three methods:
      • Actual hours of service;
      • A work day equivalency - count eight hours of service per day if the employee works at least one hour; or
      • A weeks-worked equivalency - count 40 hours of service per week if the employee works at least one hour per week.

An employee may work for the same large employer on and off, for periods at a time. Sometimes this is because an employer terminates and then rehires an employee.

Other times an employee may be on an unpaid leave of absence and therefore not credited with any hours of service.

Whether an employee's FMLA leave would count in computing hours of service worked depends on whether the employee's FMLA leave was paid or unpaid. Only hours of paid work count in calculating the employee's hours of service, so unpaid leave would not be included. However, unpaid FMLA leave is subject to an "averaging" rule. In January 2014, the IRS issued final regulations that include a method for averaging hours when measurement periods include special unpaid leave (i.e., USERRA, jury duty and FMLA leave). Under the averaging method the employer either:

  • Determines the average hours of service per week for the employee during the measurement period excluding the special unpaid leave period, and uses that average for the entire measurement period; or
  • Credits the employee with hours of service for the special unpaid leave at a rate equal to the employee's average weekly rate during the measurement period that does not include the hours of special unpaid leave.

ACA and Continuation of Benefits During FMLA Leave

The ACA does not affect the FMLA's provisions for continuation of benefits during FMLA leave. Employers are permitted to discontinue coverage if the employee fails to pay plan premiums for more than 30 days. +29 C.F.R. § 825.212(a).

An employer's obligations to maintain health insurance coverage ceases under the FMLA if an employee's premium payment is more than 30 days late, absent an established employer policy providing a longer grace period. In order to drop the coverage for an employee whose premium payment is late, the employer must provide written notice to the employee that the payment has not been received. The notice must be mailed to the employee at least 15 days before coverage is to cease, and must advise that coverage will be dropped on a specified date at least 15 days after the date of the letter unless the payment has been received by that date. +29 C.F.R. § 825.212(a).

The employer may drop the employee from coverage retroactively if the employer has established policies regarding other forms of unpaid leave that provide for the employer to cease coverage retroactively to the date the unpaid premium payment was due, provided the 15-day notice was given. +29 C.F.R. § 825.212(a).

If coverage lapses because an employee has not made required premium payments, upon the employee's return from FMLA leave, the employer must still restore the employee to coverage/benefits equivalent to those the employee would have had if leave had not been taken and the premium payment(s) had not been missed. If an employer terminates an employee's insurance in accordance with the FMLA and fails to restore the employee's health insurance upon the employee's return, the employer may be liable for:

  • Benefits lost by reason of the violation;
  • Other actual monetary losses sustained as a direct result of the violation; and
  • Appropriate equitable relief tailored to the harm suffered.

+29 C.F.R. § 825.212(c).

The Health Insurance Portability and Accountability Act

The Health Insurance Portability and Accountability Act (HIPAA), which is part of ERISA, ensures the ability of employees to be covered under health plans when they transition to a new employer. See Employee Benefits > Health Information and Privacy (HIPAA). Further, HIPAA also includes a privacy rule, strictly regulating the use and disclosure of individually identifiable health information for entities covered by the Act. While not every employer is directly regulated by HIPAA, a key purpose of the legislation was to protect such medical information in the employment arena.

The FMLA includes certain provisions to address these privacy concerns. They cover:

  • Contacting the doctor;
  • Getting a HIPAA release; and
  • Confidential files.

The FMLA contains detailed instructions addressing an employer's right to contact the employee's physician for authentication and clarification of a health care provider's certification. The FMLA regulations make clear that the direct supervisor, who will generally be making employment decisions about the employee, may not contact the doctor. Instead, contact should only be initiated by a health care practitioner, HR professional, leave administrator or appropriate management official (other than the direct supervisor). See Employee Leaves > FMLA > Requesting Certification of the Need for Leave.

When these contacts with the employee's physician involve the exchange of individually identifiable health information, employers must obtain a HIPAA release from employees prior to gathering such information. An employee may not be required to sign the release. However, if the employee does not agree to release the information, the employer may deny leave.

Finally, as required by the ADA and in line with the FMLA's intent, employers should maintain all employee medical information, including, but not limited to, FMLA paperwork, in separate, locked files, only providing access to those employees with a need-to-know.

Short-Term and Long-Term Disability Plans

Short-term and long-term disability plans provide income protection to employees who are out of work. In that regard, they are fundamentally different from the FMLA, which provides leave, but no wages.

Employees on FMLA Leave Who Qualify for Short-Term Disability Benefits

Employees on FMLA leave for a certain period of time (sometimes as little as one week) may also qualify for certain income replacement under an employer's short-term disability (STD) plans. Because STD only provides a financial benefit, an employee's time receiving STD benefits does not extend the 12 weeks of leave available under the FMLA. Instead, receipt of the benefit runs concurrently with any FMLA leave (assuming the employee is otherwise eligible for FMLA leave).

While on FMLA leave and receiving STD benefits, the employer and employee may agree to substitute available paid time off (vacation, sick, PTO) in order to supplement the employee's STD benefits up to 100 percent of the employee's regular earnings - where allowed under state law. See Employee Benefits > Insurance and Disability Benefits: Federal > Short-Term Disability.

Employees on FMLA Leave Who Qualify for Long-Term Disability Benefits

Employees who remain on FMLA leave and/or continue on other leaves of absence may eventually qualify for benefits under an employer's long-term disability (LTD) plans. Traditionally, these plans begin paying a portion of preleave earnings after an employee has been out of work for several months. See Employee Benefits > Insurance and Disability Benefits: Federal > Long-Term Disability.

While many employees on LTD face the reality of semipermanent or permanent leaves of absence due to a serious, disabling condition, not every employee who qualifies for LTD will be unable to return to work. Therefore, policies which provide that employees will automatically be replaced, have their job filled or be terminated upon their transition to LTD should be re-evaluated in light of the increased attention on fixed leave policies. See Employee Leaves > FMLA > Providing Leave or Extended Leave as a Reasonable Accommodation. While many employees on LTD will have no reasonable likelihood of return and an indefinite leave might not be reasonable under the ADA, a rigid policy forecloses the interactive dialogue with the employee. Further, failing to engage in an interactive dialogue may constitute a failure to accommodate an employee who has a reasonable return to work date in sight.

Collective Bargaining Agreements

Employers with partially or fully unionized workforces should also be diligent in ensuring that employees leaves under the FMLA (or ADA, state law or employer policy) comply with the provisions of any applicable collective bargaining agreement (CBA). See Labor Relations > Collective Bargaining Process. Examples of this type of overlap may include CBA provisions that:

  • Provide for paid leave (as opposed to the otherwise unpaid nature of FMLA leave);
  • Provide for extended periods of leave beyond the 12 workweeks of FMLA;
  • Address the availability of light-duty assignments; or
  • Govern the accrual and use of, or bidding for, paid time off (vacation, sick, PTO).

In any event, employees will benefit from the most favorable protections under both the FMLA and any CBA that governs their employment. For example, if a CBA provides for reinstatement to a lesser or different position because of certain seniority rules, the FMLA's protections trump that particular CBA provision. Thus, the employee is entitled to FMLA reinstatement rights - return to the same job or an equivalent job with the same pay, benefits and terms and conditions of employment.

Employer Policies

The FMLA and the numerous other laws with which it intersects at both the federal and state levels establish the floor of benefits and protections available to employees. In many situations, employer policies and plans may provide more favorable terms that the employer will be bound to follow in the administration of employee leaves. The employer, with the assistance of legal counsel, should carefully review existing policies for compliance with state and federal law, as well as the employer's original intent in their drafting. Examples may include policies on:

  • Leaves of all kinds;
  • Disabilities and accommodation;
  • Paid time off;
  • Workers' compensation;
  • Light duty;
  • Short-term and long-term disability;
  • Health and welfare benefit plans; and
  • Confidentiality.

State Laws

Many states have laws that impact the analysis of the FMLA. State laws may provide leave rights to employees working for employers with fewer than 50 employees, offer extended periods of leave beyond the FMLA's 12 weeks, provide leave for conditions and circumstances not covered by the FMLA, or even offer certain levels of wage replacement in some circumstances. When considering any issues relating to the FMLA, employers must check to see if state laws also apply. See Leave Laws by State and Municipality.

Additional Resources

Employee Leaves > FMLA

The FMLA's Interaction With Other State and Federal Laws

Employee Management > Disabilities (ADA) > ADA Interplay

Employee Leaves > USERRA > USERRA Interplay