The Interplay of the ADA and FMLA - Great Lakes ADA Center

21 Pages·2009·0.48 MB·English

by  Randall Owen

Brief No. 9
EMPLOYMENT January 2009
Legal Briefings
Prepared by:
Alan M. Goldstein
Senior Attorney, Equip for Equality *

“The Interplay of the ADA and FMLA”
Introduction
For employees and employers, leave from work due to serious illness or disability is a
complicated issue. Important laws on both the state and federal level may apply depending on an
individual’s particular circumstances. This paper examines two of the applicable federal laws, the
Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) and their
application and interplay in the context of employee leave due to illness or disability.
General Overview of the Laws

The ADA is a federal statute that addresses the civil rights of people with disabilities in
numerous contexts.1 The stated purpose of the ADA is “to assure equality of opportunity, full
participation, independent living, and economic self-sufficiency” for individuals with disabilities.2 The
FMLA is a federal statute mandating leave for certain employees for the birth or placement of a child or
the serious health condition of an employee or immediate family member.3 An employer, when
confronted with the issue of requesting time off for a medical leave, should separately evaluate the
employee’s rights under the ADA and FMLA. In this evaluation, the employer should consider whether
these rights overlap and the appropriate actions to take regarding the requested time for medical leave.4
Employers should also consider whether state worker’s compensation laws would cover the leave
request. Since worker’s compensation laws vary from state to state, this paper will not address that
issue.

The Americans with Disabilities Act (ADA)
In 1990, Congress passed the ADA and utilized the same definition of disability as the
Rehabilitation Act of 1973, i.e., a mental or physical impairment that substantially limits a major life
activity.5 This definition concerning who is covered by the ADA has itself been “substantially limited” by
the U.S. Supreme Court and lower courts since the passage of the ADA. Supreme Court rulings in three
cases known as the Sutton trilogy, and a later ruling in Toyota v. Williams,6 limited this definition. As
these cases deviated from congressional intent, Congress passed the ADA Amendments Act (ADAAA)
of 2008 that went into effect on January 1, 2009.7 Under the ADAAA, courts will construe the definition of
disability much more broadly than in the past.
Title I of the ADA contains the provisions related to employment.8 One of the central
The Interplay of the ADA and FMLA

provisions of Title I is the requirement that The situation where both laws apply is the
employers provide reasonable accommodations most complex. In these situations, an employer
to employees with disabilities that will allow them must provide leave under whichever statute
to perform the essential functions of the job. The provides the greater rights to employees.15
employment provisions involve every aspect of However, double recovery will not be awarded to
employment, including application procedures, the employee for the same loss.16 The FMLA
medical testing, reasonable accommodations, Regulations and EEOC Guidance attempt to
workplace policies and procedures, benefits, explain the complex relationship between these
discipline, harassment, and termination. In two laws.17 In analyzing an employee’s leave
every situation, the ADA requires that employers request, “An employer should determine an
make an “individualized assessment.”9 The employee's rights under each statute separately,
T
Equal Employment Opportunity Commission is and then consider whether the two statutes overlap
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the government agency charged to provide regarding the appropriate actions to take.” 18
e
guidance and enforcement of ADA for
employment issues.10 This paper will not focus I
on broad ADA or reasonable accommodation General Provisions for Leave Under n
issues, but will only examine issues that arise the ADA and FMLA t
e
when an employee requests leave from work as
r
a reasonable accommodation.
p
Generally, the ADA and FMLA
l
requirements for leave are: a
The Family and Medical Leave Act ADA y
(FMLA)
o
1. An employee who needs leave as a
f
The FMLA was passed in 1993 and reasonable accommodation is entitled
t
entitles eligible employees to take up to to such leave if the leave will not
h
12 weeks of unpaid, job-protected leave in a 12- cause undue hardship on the
e
month period for specified family and medical employer.

reasons.12 The purpose of the FMLA is “to 2. There is no specified limit of time for A
entitle employees to take reasonable leave for the leave, but the time must be
D
medical reasons, for the birth or adoption of a reasonable.
child, and for the care of a child, spouse, or 3. The amount of leave that is A
parent who has a serious health condition.”12 reasonable in a particular
a
The U.S. Department of Labor (DOL) is the circumstance is a fact specific situation
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government agency charged to enforce and requiring an individualized
provide guidance under the FMLA.13 In 2008, assessment. d
the DOL published the final regulations for the 4. The leave must enable the employee
F
FMLA. The new rules clarify ambiguities in the to become qualified to perform the
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FMLA as well as providing new military family essential job functions with or without
leave entitlements. The new rules are effective a reasonable accommodation at the
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January 16, 2009.14 end of the leave period.
A
5. An employer may offer an
Areas of Application and Interaction of accommodation other than leave if it is
the FMLA and ADA reasonable and effective despite an
employee’s preference to be granted

leave to accommodate their disability.
In analyzing employee leave situations,
6. ADA leave may taken intermittently
there are four possible situations with respect to
absent “undue hardship.”
the application of the ADA and the FMLA:
7. An employer must allow the individual
1. Only the ADA applies;
to use any accrued paid leave first,
2. Only the FMLA applies;
but, if that is insufficient to cover the
3. Neither law applies; or
4. Both laws apply.
Brief No. 9
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January 2009
The Interplay of the ADA and FMLA
entire period, then the employer immediate family member with a
should grant unpaid leave19. serious health condition.” 27
8. An employer must continue an 9. Eligible employees who are family
employee's health insurance benefits members of military service members
during his/her leave period only if it with a serious injury or illness incurred
does so for other employees in a while in the line of duty, may take up to
similar leave status. 26 weeks of leave to care for them.28
9. An employee should be reinstated to 10. Families of active duty members of the
the same position after leave absent Reserve or National Guard may qualify
“undue hardship” as long as they are for leave for a “qualifying exigency”.
still qualified for the position.20 This leave allows an employee to T
handle the affairs of child, spouse, or
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FMLA parent related to a contingency
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1. An eligible employee is entitled to a operation. Qualifying exigency leave

maximum of 12 weeks of leave per 12 counts towards the employee’s 12 I
month period. week FMLA leave29. n
2. Leave is also available where “the t
e
employee or family member is
If an employee qualifies for FMLA leave r
incapacitated or unable to perform the
under the statute, then the right to leave is p
essential functions of the position
absolute; i.e. the employee must be granted l
because of a chronic serious health a
condition.21” medical leave.30 Unlike the ADA, the FMLA does y
not take the “reasonableness” of leave into
3. “FMLA leave may be taken
‘intermittently or on a reduced leave account. The ADA also permits an employer to o
offer a reasonable accommodation other than
schedule’ … when medically f
leave if it is effective and eliminates the need for
necessary for “medical treatment of a t
leave despite the employee’s preference for leave. h
related serious health condition, … for
recovery from treatment.” 22 This differs from the FMLA, where the employer e
cannot substitute an alternative accommodation for
4. An employer must allow the individual
an employee’s valid leave request. When both A
to use any accrued paid leave first, but
if that is insufficient to cover the entire laws apply, FMLA leave may be extended beyond D
12 weeks as a reasonable accommodation under
puenrpioadid, ltehaevne t.h23e employer should grant the ADA.31 A

5. An employer to continue the a
employee’s health insurance coverage n
Covered Employers
during the leave period, provided the
d
employee pays his/her share of the

premiums.24 F
ADA
6. An employee's use of FMLA leave M
cannot result in the loss of any
employment benefit that the employee Title I of ADA defines an employer as “a L
earned or was entitled to before using person engaged in an industry affecting commerce A
FMLA leave.25 who has 15 or more employees for each working

7. The FMLA guarantees the right of the day in each of 20 or more calendar weeks in the
employee to return to the same current or preceding calendar year, and any agent
position or to an equivalent one unless of such person...” State and local government
the employee is designated as a “key employers of any size are covered by the ADA.32
employee” (discussed in more detail In addition, state and local anti-discrimination laws
below).26 may cover employers of any size.33
8. Leave may also be taken to provide
care or psychological comfort to an The question of how employees are
counted was discussed by the U.S. Supreme Court
in the case of Clackamas v. Wells. In Clackamas,
Brief No. 9
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January 2009
The Interplay of the ADA and FMLA
a physicians’ group argued that the ADA did not Covered Employees
apply to them as an employer because it did not
meet the 15-employee requirement unless the 4
physician-partners counted as employees.34 The ADA
U.S. Supreme Court held that the common-law
The issue of whether an employee is
element of control in master-servant relationships
covered pursuant to Title I of the ADA is a
was relevant in determining whether the physician-
complicated issue and has been the most litigated
partners would also be counted as employees for
issue under the Act. Typically, it is more efficient
purposes of the ADA. The Court referenced EEOC
and cost effective for the employee and employer
guidelines as providing a framework for deciding
the central question of “‘whether the individual acts to focus on investigating effective T
accommodations rather than in making the
independently and participates in managing the h
determination of whether the employee is covered
organization, or whether the individual is subject to e
the organization's control.’”35 The EEOC guidelines pursuant to the ADA. An employee is considered

cited by the Court identify the following six factors to be an individual with a disability if they: I
n
as being relevant to this determination:
1. Have a disability; t
e
2. Have a record of a disability; or
r
1. “Whether the organization can hire or fire 3. Are regarded as having a disability.40 p
the individual or set the rules and
l
regulations of the individual's work; A disability is defined by the ADA as a “physical or a
mental impairment that substantially limits one or y
2. “Whether and, if so, to what extent the
more of the major life activities.”41 In order to be
organization supervises the individual's o
protected by the Act, an individual must be
work; qualified to perform the core job duties, called the f

3. “Whether the individual reports to someone “essential functions” of the job, with or without a t
h
higher in the organization;“ reasonable accommodation.42 Essential functions
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are determined by focusing on the purpose of the
4. Whether and, if so, to what extent the f u nction and the result to be accomplished, rather A
individual is able to influence the
than simply considering how the function is
organization; D
currently performed or what is written in the job
5. “Whether the parties intended that the description.43 These determinations must be made A
individual be an employee, as expressed in on a case-by-case basis.44
written agreements or contracts; a
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Reasonable Accommodations
6. “Whether the individual shares in the profits,
d
losses, and liabilities of the organization.”36 A “reasonable accommodation” is any
change or adjustment to a job or work environment
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that permits a qualified applicant or employee with
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a disability to participate in the job application
FMLA
process, to perform the essential functions of a job, L
The FMLA defines an employer as “any
or to equally enjoy the benefits and privileges of
A
person engaged in commerce… who employs 50
employment. The EEOC and the courts have
or more employees for each working day during
conclusively stated that leave from work due to a
each of 20 or more calendar workweeks in the
disability is a possible reasonable accommodation
current or preceding calendar year…”37 Public
under the ADA. The leave can include accrued
agencies are covered by the FMLA regardless of
paid leave or unpaid leave. The leave may be
the number of employees. Public and private
taken intermittently or as a period of continuous
elementary school employees are also covered by time.45 The EEOC has identified that some of the
the FMLA regardless of the number of employees,
disability-related reasons for leave include, but are
but there are special rules addressing employees
not limited to:
of local educational agencies.39
1. Obtaining medical treatment (e.g., surgery,

psychotherapy, substance abuse treatment,
Brief No. 9
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January 2009
The Interplay of the ADA and FMLA
or dialysis), rehabilitation services, or The relevant criteria in determining the
physical or occupational therapy; reasonableness of leave as an accommodation
2. Recuperating from an illness or an episodic includes the:
manifestation of the disability; 1. Length of leave requested;
3. Obtaining repairs on a wheelchair, 2 . Whether the nature of the job or the financial
accessible van, or prosthetic device; circumstances of the company makes it an
4. Avoiding temporary adverse conditions in undue hardship to keep the position open or
the work environment (for example, an hire temporary workers;
air-conditioning breakdown causing 3 . Cost of the leave;
unusually warm temperatures that could 4. Financial resources of facility involved;
seriously harm an employee with multiple 5. Overall financial resources of covered T
sclerosis); entity; h
5. Training a service animal (e.g., a guide dog); 6. Type of operation, including e
or composition, structure, and functions

6. Receiving training in the use of Braille or to of work force; I
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learn sign language46 7. Impact of the leave on operation of facility.54
t
e
The amount of leave that is required The employee usually has the burden to r
under the ADA is something that depends on the propose reasonable accommodations and both p
specific situation, and requires an individualized parties have the duty to engage in the interactive l
a
assessment under the factors relevant to a process. The employer, however, has the ultimate
y
reasonable accommodation and undue hardship obligation to provide an effective reasonable
analysis. There is no “bright line rule for accommodation.55 o
determining a maximum duration of leave that f
can constitute a reasonable accommodation.”47 FMLA t
If holding a position open is deemed by h

the employer to be an undue hardship, the e
A. An “eligible employee” for FMLA leave is
employer must consider reassignment to a

vacant, equivalent position for which the someone who: A
1. Has been employed for at least 12 months
employee is qualified and to which the employee D
may return at the conclusion of the leave.48 by a covered employer; and
2. Has performed 1,250 hours of work during A
Making reasonable modifications to
policies and procedures is also a form of those 12 months, which do not have to be
consecutive.56 a
reasonable accommodation. Employers must
3. In measuring the 12 months, separate terms n
modify workplace, attendance, and leave
of employment are counted as long as a d
policies to grant leave absent an undue
hardship.49 This includes modifying so called break in service does not exceed 7 years.
F
Military service cannot be included in the
“no-fault” policies whereby employees are
break in service determination.57 M
terminated after being on leave for a certain
period of time.50 Employees cannot be 4. Works where there are at least 50 L
employees working within 75 miles of the
pae rneaalsizoenda bfoler taimcceo mmmissoedda tdiounri.n51g Alena veem tpalkoeyne ra s worksite.58 A
• In Bellum v. PCE Constructors, the
may offer the employee an accommodation
5th Circuit upheld the DOL
other than leave, for example reassigning
interpretation that the 75 miles be
non-essential job functions, if the proposed
measured by surface miles, not
accommodation is effective and eliminates the
need for leave.52 Note that the employer does linear miles.59
5. Is requesting leave due to their own “serious
not have this option under the FMLA; if an
health condition” or the “serious health
employee qualifies for FMLA leave, then the
employer must grant the leave.53 condition” of an immediate family member
(defined as parent, spouse, or child).60

Brief No. 9
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January 2009
The Interplay of the ADA and FMLA
B. The term “serious health condition” means: condition did meet the definition of a “serious
1. An illness, injury, impairment, or physical or health condition.”66
mental condition that involves inpatient care
in a hospital, hospice, or residential medical
A Case Illustrating ADA and FMLA
care facility; or
2. Continuing treatment by a health care Interplay on Reasonable
provider.61 Accommodations
• In Russell v. North Browards
Hospital, the court held that a
serious health condition requires
three full days of incapacity62. In the case of Santacrose v. CSX T
Transportation, Inc., an employer claimed that it h
C. “Continuing treatment” is defined as: reasonably accommodated an employee’s e
1. A period of incapacity of more than three disability by allowing him to use company sick
calendar days that results in two or more leave and FMLA leave to avoid working mandatory I
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treatments by a health care provider within a overtime shifts.67 The employee would have
t
30 day period or preferred to avoid overtime without being required e
2. Treatment by a health care provider on at to use his company sick leave or FMLA leave. The r
least one occasion which results in a court held that the employer did comply with the p
regimen of continuing treatment under the ADA even though it did not provide the employee l
supervision of the health care provider.63 the accommodation that he specifically requested. a
y
3. Both options for continuing treatment The court did not address the issue of what would
require an in person doctor visit within happen once the employee used up all available o
7 days of the onset of the leave. sick or FMLA time.68
f

t
D. “Continuing treatment” can also include: The Employee Request for Leave h

e
1. Any period of incapacity due to pregnancy or

for prenatal care, a chronic serious health A
condition, permanent or long term condition ADA
D
for which treatment is not effective (e.g.,
A
stroke, Alzheimer’s disease); or Generally, under Title I of the ADA, the
2. A period of time to receive multiple e mployee must make the initial request for leave
a
treatments (e.g., chemotherapy for cancer or (or any other “reasonable accommodation”).69
dialysis for kidney disease).64 EEOC Guidance provides: n
d
1. The employee “may use ‘plain English’” and
need not mention the ADA or the term
A Case Illustrating ADA and FMLA F
“reasonable accommodation” as long as the
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Interplay on Employee Coverage plain meaning of the request reasonably
alerts the employer to the need for leave L
due to a medical condition.70 A
In the case of Verhoff v. Time Warner 2. There are no formal phrases or words that
Cable, Inc., a cable installer claimed that he was need be included in the request for leave.
entitled to leave under the FMLA and ADA due to 3. There are no specific notice requirements in
his eczema.65 The employee claimed that his terms of the amount of advance notice that
condition limited him in sleeping, caring for himself, is required.
thinking, concentrating, and cognitive processes. 4. A friend, family member, service provider, or
The court held that sleeping five hours per night any other individual can make a request for
was not a substantial limitation under the ADA nor leave on behalf of the employee.71
were the distractions to the employee’s mental
processes caused by his condition. However, the
FMLA
employee was covered by the FMLA as his
Brief No. 9
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January 2009
The Interplay of the ADA and FMLA
The FMLA Regulations state: enable it to make an informed decision about the
1. “An employee shall provide at least verbal request. If the need or effectiveness of an
notice sufficient to make the employer aware accommodation is not apparent, the employer in
that the employee needs FMLA-qualifying certain circumstance may make a limited
leave, and the anticipated timing and medical inquiry for relevant medical information
duration of the leave. (discussed below in more detail). In addition to
2. The employee need not expressly assert medical information, an employer may
rights under the FMLA or even mention the inquire regarding the type of reasonable
FMLA, but may only state that leave is accommodation requested.79 The ADA does not
needed for an expected birth or adoption, for require the employer to provide employees with
example.”72 notice about their rights. However, many T
3. In Aubuchon v. Knauf Fiberglass, the court employers have information about ADA rights h
held that, the employer can deny the and reasonable accommodation procedures in e
benefits of the leave if the employee does employee handbooks.

not provide proper notice.73 I
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4. The FMLA requires the employee to provide FMLA
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the employer with 30 days notice of the The FMLA requires that employers: e
need for leave if the need for leave is 1. Prominently post a notice regarding r
foreseeable.74 employee rights under the FMLA; p
5. If the need for leave is not foreseeable, the 2. Including an FMLA policy in the employer’s l
a
employee must give notice “as soon as handbook or policy manual (if one is
practicable”.75 available); y
6. If the employee fails to give 30 days notice 3. Provide written FMLA guidance o
without any reasonable justification for the concerning the employee’s rights and
f
delay, the employer is able to delay the obligations pursuant to the FMLA if there is
t
leave until 30 days after it received notice. no handbook or manual. h
7. If the employer wishes to delay leave the 4. Provide employees with a standard form e
employee’s leave due to lack of proper when an employee requests leave.80

notice, “it must be clear that the employee A
had actual notice of the FMLA notice The posted notice must include: D
requirements. This condition would be 1. The specific expectations and obligations of
satisfied by the employer's proper posting of the employee and explaining any A
the required notice at the worksite where the consequences of a failure to meet these
employee is employed.”76 obligations; a
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8. A friend, family member, service provider, or 2. That the leave will be counted against the
any other individual or “spokesperson” may employee's annual FMLA leave entitlement; d
make the request for the employee, if the 3. Any requirements for the employee to
F
employee is unable.77 furnish medical certification of a serious
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health condition and the consequences of
failing to do so; L
The Employer Response to the 4. The employee’s right to substitute paid leave A
and whether the employer will require the
Leave Request/Notice of Rights substitution of paid leave, and the conditions
related to any substitution;
5. Any requirement for the employee to make
ADA any premium payments to maintain health
Once an individual has requested a benefits and the arrangements for making
reasonable accommodation, the employer is such payments and the possible
obligated to engage in an interactive process consequences of failure to make such
with the employee in order to an appropriate and payments on a timely basis;
effective accommodation.78 The employer may
ask the individual relevant questions that will
Brief No. 9
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January 2009
The Interplay of the ADA and FMLA
6. Any requirement for the employee to present bladder.” He also stated that he was going to see a
a fitness-for-duty certificate to be restored to doctor about his medical issues.87
employment;
7. The employee’s status as a “key employee” In November, the employee received the first
verbal warning regarding his work performance in
and the potential consequence that
his four years of employment.88 In a December
restoration may be denied following FMLA
meeting, he provided the company more
leave, explaining the conditions required for
such denial; information on his medical condition. He said that
he “felt sick” even though he didn’t look sick. He
8. The employee's right to restoration to the
also stated that he had a fear of prostrate
same or an equivalent job upon return from
problems as his brother-in-law had prostate T
leave; and
cancer. He said that if he had progressive form of h
9. The employee's potential liability for
payment of health insurance premiums paid prostate cancer, he would feel suicidal. In January, e
he was told that he was a “loose cannon” and was
by the employer during the employee's
reprimanded for causing disruptions. Two weeks I
unpaid FMLA leave if the employee fails to n
later, Mr. Burnett told his employer that he was
return to work after taking FMLA leave.81 t
going for a biopsy. He was reprimanded for e

A copy of a notice may be obtained from “substandard work” the same day.89 r
p
local offices of the Department of Labor's Wage
After the biopsy, Mr. Burnett requested light l
and Hour Division, which employers may adapt for a
duty and one week of vacation leave (to get the
their use to meet these specific notice
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biopsy results) and was denied. He was later told
requirements.82 Employers have 5 business days
to see his supervisor about the leave request, but
to provide notice to employees. If an employer fails o
stated that he felt sick and needed to leave work.
to provide notice in accordance with the provisions f
He then left work even though he was denied
of this section, the employer may not take action t
permission. A few days later, Mr. Burnett was
against an employee for failure to comply with any h
provision required to be set forth in the notice.83 terminated for insubordination. He was e
experiencing complications from the biopsy and
However, if an employer fails to provide notice that
gave the paperwork to the company but Habitat A
leave already taken counts against FMLA leave,
would not reconsider the termination. Soon
the employee may not be entitled to additional D
FMLA leave.84 In these cases, a court will look at thereafter, biopsy results indicated cancer. Mr.
Burnett filed suit under ADA and FMLA. The court A
the harm suffered by the employee due to the lack
of notice to determine the proper remedy.85 held that Mr. Burnett did give proper notice under a
the FMLA although it was a “close question.” The
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court noted that no special language is needed to
A Case Illustrating ADA and FMLA request leave but that saying “I’m sick” is not d
enough. However, in this case the other
Interplay on Employee Coverage F
statements about prostrate trouble are also
and Notice relevant. The court held that Mr. Burnett did have M
an FMLA “serious health condition” even before
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the cancer diagnosis and the Habitat may have
A
committed FMLA interference and retaliation by
The case of Burnett v. LFW Inc., d/b/a The terminating him. However, the court also found that
Habitat Co., involves several ADA and FMLA
there was no ADA disability at the time of
issues.86 The employee of a property management
termination so the ADA was not applicable.
company, whose job required lifting, had no

performance issues. In October 2003, Mr. Burnett
first informed Habitat that he was having medical
Medical Certification
difficulties. Around the same time, he was offered
a transfer to a different location, presumably due to
conflicts with a co-worker. The employee declined
ADA
the transfer as he would have reduced restroom
access which would be bad due to his “weak
Brief No. 9
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January 2009
The Interplay of the ADA and FMLA
Once an employee has requested a employer can request that the individual visit a
reasonable accommodation, the employer has healthcare professional of the employer’s choice
the right to request reasonable medical for the purposes of documenting the disability
documentation only if the disability is not and functional limitations related to the request
obvious regarding the nature of disability and for a reasonable accommodation. However, the
functional limits.90 Under the ADA: employer should explain why the documentation
1. Reasonable medical documentation is is insufficient and allow the individual to supply
defined as medical information that is the missing information in a timely manner.97
related to the need to establish that the Any employee medical examination conducted
individual has a disability for which an by the employer’s health professional must be
accommodation is requested.91 related to the job and consistent with business T
2. A reasonable accommodation request from necessity. This means that the examination h
an employee does not give the employer the must be limited to determining the existence of a e
right to seek a general medical release.92 disability pursuant to the ADA and the functional

3. The request for documentation must be limitations that require a reasonable I
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strictly limited to the accommodation request accommodation.98 The employer must pay all
t
and an employer may not seek medical costs associated with the visit. e
information unrelated to the accommodation r
request. FMLA p
4. The employer may request that the When an employee requests leave due to l
a
documentation be provided by an a serious health condition, the employer may
y
appropriate healthcare or rehabilitation request additional medical information including:
professional.93 1. Medical certification from the health
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5. If an individual’s disability or need for an care provider of the employee (or their
f
accommodation is not obvious to the immediate family member if their
t
employer, and the individual refuses to condition gives rise to the need for
h
provide the requested reasonable leave), to support the need for such
e
documentation, then the individual is not leave.99

entitled to a reasonable accommodation.94 • In Urban v. DolgenCorp of A
6. The employer must keep all medical Texas, Inc., the 5th Circuit held
D
information in a confidential medical file that that leave was properly denied
is separate from the employee’s personnel because the employee’s A
file. physician failed to submit the
a
• In Cripe v. Mineta, an employer required certification.100
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carelessly left unconcealed on a 2. Periodic updates from the employee
desk a letter from the employee’s on the status of the leave and the d
attorney indicating the employee intention to return to work.101
F
had HIV. As a result, other 3 . A second opinion if the employer
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employees discovered the legitimately questions the validity of
employee had HIV. The Court the medical certification. The L
denied summary judgment for the employer is entitled to select the
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defendant and found a question of health care provider at the employer’s
material fact remained as to whether expense, but the selected health care
the employer appropriately p r o vider may “not be employed on a
maintained the confidentiality of the regular basis by the employer.” 102
medical records.95
7. Staff of the employer should only have If an employer finds a medical certification to be
access to the information on a “need-to- incomplete, the employer must inform the
know” basis.96 employee in writing of the deficiency and the
employee has 7 days to cure. The employer’s
If the individual supplies insufficient representative may contact the employee's health
information from a healthcare professional, the care provider for purposes of clarification and
Brief No. 9
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January 2009
The Interplay of the ADA and FMLA
authenticity of the medical certification.103 The Periodic or intermittent leave is available to
employer’s representative must be a healthcare employees under both the ADA and the FMLA.
provider, human resource professional, a leave Intermittent leave is time taken off from work in
administrator, or a management official, but cannot separate blocks of time. A reduced leave schedule
be the employee’s direct supervisor. is leave that reduces the number of hours that an
employee works per week.112
If a health care provider selected by the ADA
employer for a second opinion has a different
Under the ADA, leave may taken
opinion than the employee’s health care provider,
intermittently or on a reduced leave schedule
the employer may request a third opinion. The
absent “undue hardship.”
third opinion is at the employer’s expense and the T

employee and employer must both approve the h
FMLA
health care provider for the examination.104 The e

opinion of the third healthcare provider shall be

considered the final binding opinion.105 In general, 1. “FMLA leave may be taken ‘intermittently or on I
n
a reduced leave schedule’ … when medically
an employer may request re-certification at any
necessary for “medical treatment of a related t
reasonable interval, but not more often than every e
30 days.106 For long term conditions, the employer serious health condition, … for recovery from r
may request recertification every 6 months.107 In treatment….” 113 p
Killian v. Yorozu Automotive Tennessee, the 6th 2. The employer may request that the employee l
provide “the reasons why the a
circuit found that if an employee fails to provide
intermittent/reduced leave schedule is y
medical certification within the time frame, the
employer’s remedy is only to delay leave, not necessary and of the schedule for treatment, if
terminate it.108 applicable.” 114 o
3. The employee and employer shall attempt to f

work out a schedule which meets the t
When the leave is foreseeable and at least
h
employee's needs without unduly disrupting
30 days notice has been provided, the employee
the employer's operations, subject to the e
should provide the medical certification before the
approval of the health care provider.115
leave begins. When this is not possible, the A
4. If the need for the intermittent leave is
employee must provide the requested certification
D
foreseeable, the employer may transfer the
to the employer within the time frame requested by
the employer (which must allow at least 15 employee for the duration of the leave “to an A
available alternative position for which the
calendar days after the employer's request),
employee is qualified and which better a
unless it is not practicable under the particular
accommodates recurring periods of leave than n
circumstances to do so despite the employee's
diligent, good faith efforts.109 DOL has developed does the employee's regular position.”116 d

an optional form, (Form WH-380), for the
a. The alternative position must have F
employee to use when obtaining medical
equivalent pay and benefits but does M
certification, including second and third opinions,
not need to have equivalent duties.
from health care providers that meets FMLA
L
certification requirements.110 In all instances the b. An employer may increase the pay
and benefits of an “existing alternative A
information on the form must relate only to the
serious health condition for which the current need position” to meet this requirement, but
for leave exists.111 “may not transfer the employee to an
alternative position in order to

discourage the employee from taking
leave or otherwise work a hardship on
Periodic Leave – Leave Taken the employee.”117
Intermittently or on a Reduced c. When an employee who was
transferred under these provisions is
Leave Schedule
able to return to full-time employment,
the employee must be placed in the
same or equivalent job as the job he/
Brief No. 9
10
January 2009