GUEST POST: FMLA & ADA: Never the twain shall meet? (Part I)

Today we have a guest blogger at The Employer Handbook. It’s Janette Levey Frisch. Janette is In-House Counsel at Joule, Inc. where she provides comprehensive legal representation and support to a staffing company with five subsidiaries throughout the East Coast. You can connect with Janette on Twitter here and on LinkedIn here.

Part one of Janette’s post on the interplay between the Americans with Disabilities Act and the Family and Medical Leave Act, an HR-compliance must-read, follows after the jump…

(Want to guest blog at The Employer Handbook? Email me.)

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Suppose you are the HR Director of The Super Duper Widget Company (or TSDWC). An employee in the Accounting Department, Anna Accountant, tells you that she has bone cancer and will need some time off for surgery, recovery and other treatments. You give Anna the appropriate paperwork so that she can take FMLA leave, and a week later she starts her leave. While she is out, Anna’s supervisor, Mary Manager, temporarily divides Anna’s more pressing responsibilities among the others in the accounting department. Ten weeks later, Anna notifies you that she will need 4 more weeks of leave. Upon Anna’s return, she will need chemotherapy every month for 6 months, which will require her to either leave work early or arrive a bit later than the usual start time. She may also need to be off the next day if she does not tolerate the chemicals well. Mary has told you that the other employees in the Accounting Department are complaining about having any extra work. Mary tells you she wants Anna back at work after 12 weeks and ready to work her full schedule. If not, she wants Anna terminated and replaced with someone “more capable of performing the job”.

What do you do? Maybe it is all right to terminate Anna? After all, you allowed her FMLA leave time. You would not be terminating her for taking FMLA leave, but because after exhausting her FMLA leave time she is still not ready to return to work. You have to allow Anna the 12 weeks’ leave under FMLA regardless of your company’s attendance policy, and regardless of the hardship to your company. Anna, however, is now saying she needs a total of 14 weeks leave, plus some occasional time off after her return, so that she can attend chemotherapy and follow-up doctor’s appointments. You have also learned that Anna’s surgery required partial amputation of one leg. Therefore Anna will have a prosthetic leg. She may also be using a cane when she returns to work, perhaps indefinitely. Since Anna’s workspace is on the second floor of a non-elevator building, Anna is asking for an accommodation that will allow her to return to work without having to deal with going up and down the stairs.

Again, what do you do? Anna exhausted her FMLA leave, so she no longer has job protection, right? So, your company can terminate her after those 12 weeks are up, right? Therefore, questions about scheduling, time off for chemotherapy and seating or other accommodations become a non-issue, right? Not so fast! While you would get points for ensuring that your company has acted in accordance with Anna’s rights under the FMLA, what about the ADA ? Wait a minute, aren’t those two separate statutes? What does the ADA have to do with any of this? Anna was sick; she was entitled to and received FMLA leave. She had job protection for the 12 weeks allotted under the FMLA. Anna didn’t claim to be disabled so how would the ADA come into play here? Can and do the two statutes really overlap? If so, when and under what circumstances—and how does an employer untangle that web? Let’s see if we can use Anna’s case to get a bit of clarity.

First what must The Super Duper Widget Company do to be sure that it complies with these statutes? Is TSDWC covered by both statutes? In order for either statute to apply, there must be a minimum number of employees. Since Anna took FMLA leave, let’s assume that her employer met the 50-employee-or more threshold. The ADA applies to private employers with 15 or more employees. We therefore know that an employer must have at least 50 employees in order for there to even be a possibility of overlap between the FMLA and the ADA, and that TSDWC is covered by both statutes.

Now what? The EEOC in its Enforcement Guidance, entitled Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, says that an employer should determine an employee’s rights under each statute separately to see if both statutes apply. Let’s start with a very brief review of FMLA.

Are we sure that Anna was eligible for FMLA leave in the first place? FMLA leave is available to employees who: a. have worked for the employer at least 12 months (which do not have to be consecutive); and b, have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins. Let’s assume for the sake of this discussion that Anna has worked for TSDWC for 2 years and never took FMLA leave before. Anna therefore has met the initial criteria, if she is seeking leave for one or more of the following reasons: 

• Birth and care of the employee’s child, within one year of birth
• Placement with the employee of a child for adoption or foster care, within one year of the placement
• Care of an immediate family member (spouse, child, parent) who has a serious health condition
• For the employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation 

Anna clearly needed time off to take care of her own serious health condition, bone cancer, which, at the time, made her unable to perform the essential functions of her job.

So Anna was eligible for and took FMLA leave. Does the ADA really apply here, and if so, to what does that entitle Anna? Find out the answer to this and other related questions in Part II tomorrow…