Top 10 FMLA and ADA issues employers must know how to handle

FMLA and ADAWhen HR professionals are surveyed, they routinely rate the FMLA and the ADA as the two most difficult laws to deal with.

In the form of questions, here’s a look at 10 of the most challenging FMLA and ADA issues HR struggles to handle.

1. What types of accommodations are available under the FMLA?

The FMLA does not provide accommodations. It provides job-protected leave.

According to the FMLA, an employee with an FMLA-qualifying serious health condition should either be working at 100% capacity or out on FMLA leave.

2. What types of accommodations are provided under the ADA?

The ADA provides three types of accommodations, which employers should offer in this order:

1. In-job accommodations that will allow an employee to perform all essential job functions

2. Leave, if it will help the employee return to full employment

3. A search for a vacant position the employee can fill—the accommodation of last resort.

3. Does the ADA allow an employee to work at home as an accommodation, even if an employer’s rule forbids it?

Unless it is impossible for an employee to fully perform the job at home, the ADA may require forgiveness of a no-working-at-home rule as an accommodation.

Saying “We do not permit that” is not a defense to a request for an accommodation.

To defend against such an accommodation, the employer would have to prove that providing the accommodation would result in the employee not fully performing one or more essential functions of the job.

4. Is light duty available under the FMLA and ADA?

The FMLA does not provide for light duty, because the employee should either be performing the entire job or be out on FMLA leave.

Neither does the ADA, because light duty is essentially the removal of an essential job function of a job.

However, the ADA may require light duty if the employer regularly offers light duty to employees who are not disabled or if it has previously created but currently unfilled light-duty positions.

5. Do both the ADA and FMLA offer job protection?

Yes. An employer must hold the employee’s position for him or her while on leave under both the FMLA and the ADA.

6. How much leave can an employee take under the ADA?

It depends. Any amount of leave should at least be considered if medical information suggests it will work. Employers must weigh whether the leave will help the employee return to his or her job, whether it is reasonable under the circumstances and whether it will impose hardship on the company.

7. How should health benefits be handled when a person is on ADA leave?

Health care benefits are determined by their status under the employer’s benefit plan. Unlike the FMLA, the ADA does not guarantee maintenance of health benefits.

8. What are the major differences between the FMLA and ADA?

Except for a few isolated instances, the FMLA automatically grants leave to any eligible employee with a qualifying serious health condition. Generally, it doesn’t matter whether the leave will be effective or how much hardship the employer will suffer because an employee needed leave.

The ADA grants leave only if it will help return the employee to full employment and only if granting it will not cause hardship for the employer.

9. Should employers ask for a doctor’s note under the FMLA and ADA?

Consider why you want a doctor’s note. Is it to prove the employee needs the leave? Or is it to prove the employee can return to work? If the latter, see question 10.

Under the FMLA, if there is a need to justify leave, then the employer may seek proof from a health care provider when the employee first seeks leave and again when a new FMLA year occurs.

Under the ADA, an employer can ask for medical proof any time the employee requests an accommodation (or some other benefit) or when the employer has an objective basis to believe the employee cannot perform an essential function of his or her job because of an impairment.

10. What are the rules concerning return to work under the FMLA and ADA?

Under the FMLA, an employer may request a return-to-work certification only if the employee had been out for his or her own condition (and then only once per FMLA year), unless the employee has a safety-sensitive job, in which case, the employer may request certification if the employer has not asked for one within the past 30 days.

Under the ADA, the employer must have an objective basis to believe the employee cannot perform an essential function of the job in order to lawfully ask for return-to-work certification.


Mike Shetterly is the managing shareholder in Ogletree Deakins’ Greenville, S.C., office.