By Patrick J. McHale
Kainen, Escalera, & McHale, P.C.

This article is intended to provide general information only. It is not intended as legal advice or as a solution to an individual problem. You are encouraged to consult with appropriate legal counsel prior to relying on this document in whole or in part.

I. Checklist for Handling Requests for Leave

  1. Determine which law(s) apply to your employees as a group (ADA, FMLA, and/or Workers' Compensation).
  2. Determine whether employee has met eligibility requirements (period of employment, need for leave, qualifying condition, etc.).
  3. Determine notice obligations and medical certification requirements.
  4. Combining all applicable laws, determine the employee's most generous leave entitlement:
  5. Pay status
  6. Alternative position/light duty work
  7. Benefits and seniority
  8. Determine reinstatement rights and obligations.

II. Comparison of Leave Rights and Obligations

  1. These statutes provide separate employment benefits for individuals.
  2. They were enacted at different times and for different purposes, but their application to circumstances often overlap.
  3. It is crucial, in analyzing any particular situation, to know that an employer must provide leave or other benefits under whatever statutory provision provides the greater right/level of benefit to the employee.
  4. When an employer violates the requirements of more than one of these laws, an employee may seek recovery under all applicable statutes.

III. Chart of ADA, FMLA, and Workers' Compensation Issues

TopicFederal & State FMLAADA & State FEPWorkers' Compensation Leave
Employer coverageFederal: 50 or more employees employed for 20 or more weeks per year within 75 mile radius.
State: 75 or more employees (as determined annually on October 1st).
ADA: 15 or more employees
FEP: Three or more employees
One or more employees
Reason for leaveFederal: birth/placement of child, or serious health condition of employee, or employee's child, spouse or parent (encompasses both physical and psychological care).
State: same as federal FMLA; can also take leave for serious health condition of parent-in-law.
ADA: impairment which substantially interferes with major life function of work
FEP: chronic physical impairment (potentially broader than ADA)
Employee has suffered work-related injury or occupational disease
Qualifying conditionsFederal: defines "serious health condition" as one that requires inpatient or continuing treatment by a health care provider (incapacity for three-plus days), that makes the employee unable to perform functions of job; includes chronic conditions like pregnancy, asthma, diabetes, epilepsy, Alzheimer's; does not include colds, flu, earaches, minor ulcers, routine dental problems.
State: same as federal FMLA, except no requirement that employee be unable to perform functions of job.
ADA: must be able to perform, with or without reasonable accommodation, the essential functions of the job; "disabled" means to have a physical or mental impairment that substantially limits a major life activity, or a record of such impairment, or being regarded as having such an impairment; does not include impairments applicable to single job, statutory exclusions (i.e., kleptomaniacs, pyromaniacs), temporary, non-chronic injuries.
FEP: chronic physical impairment (potentially broader than ADA).
Injury or occupational disease must arise out of and in the course of employment.
Work-related emotional distress injuries not related to physical injury are not covered.
Request for leave & medical certificationFederal: can require 30 days notice of leave for birth/placement of child, or medical treatment that can be foreseen; can require doctor's certification of serious health condition; can require reasonable documentation of family relationship for family leave (i.e., birth certificate, court document).
State: can require employees to give prior notice of leave in a reasonable manner for birth/placement of child, or medical treatment that can be foreseen, or for personal illness of child, spouse or parent (30 days or as soon as practicable); can require doctor's certification of nature and expected duration of condition; can require reasonable documentation of family relationship for family leave.
ADA: obligation of employee to request leave as reasonable accommodation; can require "fitness-for-duty" exams if job-related and consistent with business necessity to determine whether employee able to perform essential functions of job, and to monitor continued progress towards return to work.
FEP: same as ADA.
Employee must provide written notice to employer of claim for benefits within one year from date of accident or three years from first manifestation of symptoms of occupational diseases. Medical examination and reports can be required at any time while claiming or receiving benefits to determine nature of injury and duration of incapacity.
Second medical opinionFederal: can require second certification by doctor not regularly employed by employer, at employer's expense; can require third certification by doctor, approved by both employer and employee, whose opinion shall be final.
State: same as federal FMLA.
ADA: no statutory provisions.
FEP: no statutory provisions.
Can be required to determine nature of injury and resulting incapacity.
Leave amountFederal: 12 weeks every year.
State: 16 weeks every two years.
ADA: indeterminate use of accrued paid leave or providing additional unpaid leave may be a necessary reasonable accommodation;
indefinite leave is not a reasonable accommodation.
State: same as ADA.
Determined by extent and duration of incapacity; not required to indefinitely retain an employee unable to perform job if suitable work not available pursuant to neutral application of absence control policy.
Intermittent/reduced leaveFederal: may be taken when medically necessary to care for serious health condition of employee, spouse, parent or child (i.e., for chemotherapy, return to work following operation); can require employees to furnish dates and duration of planned treatment; can require temporary transfer to alternative position while on intermittent leave; can require employees to schedule treatments so as to avoid disruption of operations, with approval of health-care provider; cannot be taken for birth/placement of child unless mutual agreement; can make deductions from employee's salary for any intermittent hours taken without affecting exempt status.
State: same as federal FMLA, with caveat that any transfer to alternative provision cannot conflict with collective bargaining agreement.
ADA: part-time and modified work schedules may be a necessary reasonable accommodation; regular attendance recognized as essential job function.
FEP: same as ADA.
Duty to provide full time suitable light work, if available; employer must supplement diminished earning capacity according to statutory formula; employee may receive time off with pay for medical appointments.
Obligation to provide light duty workFederal: no obligation to provide if light duty job offered, cannot force employee to take it in lieu of leave.
State: same as federal FMLA.
ADA: transfer to different vacant job may be a required reasonable accommodation, only if employee can still perform essential functions of job and transfer does not impose undue hardship.
FEP: same as ADA.
Duty to provide full-time suitable work, if available, and if employee is medically authorized to perform light duty work; refusal to accept light duty job may result in termination of benefits.
Pay status during leaveFederal: unpaid· employer may mandate or employee may elect to use paid vacation or other time off for family leave and/or paid sick time for medical leave, consistent with company policies; employer may designate disability leave for birth of child as FMLA leave and count the leave as running concurrently for purposes of any temporary disability plan.
State: same as federal FMLA.
ADA: unpaid (but may not discriminate).
FEP: same as ADA.
Compensation during total or partial incapacity where incapacity greater than 3 days; amount determined by statutory formula for total or partial incapacity; employee or employer may choose to have FMLA leave entitlement run concurrently with workers' compensation absence when injury meets criteria for serious health condition; cannot substitute paid leave for workers' comp leave.
Benefits & seniorityFederal: health insurance must be continued as though employee still at work; can request reimbursement for health insurance premiums paid if employee does not return to work for non-medical reasons; seniority and other benefits need not accrue during leave, but must be reinstated at end of leave (may not discriminate); starting leave is not a qualifying event under COBRA.
State: not required to continue health insurance benefits (COBRA rules apply); seniority and other benefits need not accrue during leave, but must be reinstated at end of leave (may not discriminate).
ADA: no accrual or continuation rights for any benefits, depending on employer's policies (may not discriminate).
FEP: same as ADA.
No accrual or continuation rights for any benefits, depending on employer's policies (may not discriminate).
Right to reinstatementFederal: entitled either to original or equivalent position with equivalent benefits and pay and conditions upon return to work, if medically able to perform essential functions; employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been employed during leave (i.e., would have lost job if not on leave); "key employee" (can deny restoration to highest paid 10% of salaried workforce if restoration causes substantial injury and notice provided); "fitness for duty" report (physicals must be job-related).
State: entitled to original position upon return; can only be returned to equivalent position with equivalent benefits, pay and other conditions of employment, if original position not available; if unable to perform original job after medical leave, must transfer to position suitable to physical condition where such work is available; defense: would have lost job if not on leave; no "key employee" defense.
ADA: mandatory right to restoration of job, unless undue hardship or amount of leave requested is unreasonable, or unable to perform essential functions of job; not required to reallocate essential functions of job or to create light duty position upon return to work.
FEP: same as ADA.
No retaliation/
discrimination for exercising statutory rights.
Pre-employment inquiries & examinationsFederal: cannot require examination or ask questions to obtain information on previous amount of family leave taken or prior serious health conditions.
State: same as federal FMLA.
ADA: can require medical examination and obtain medical information after conditional job offer made.
FEP: same as ADA.
At pre-offer stage, as at any other time, may not obtain information about applicant's prior workers' compensation claims or occupational injuries from third parties (i.e., former employers, worker's compensation commissioners).
Employer's notice obligationsFederal: employee does not have to specifically request FMLA leave or even mention FMLA when requesting leave; with limited exceptions, employer must designate employee's use of leave, paid or unpaid, as FMLA leave based on information provided by the employee and to notify the employee of the designation orally within two business days, and in writing no later than next regular payday; leave time does not count against the employee's FMLA entitlement until proper FMLA designation made by employer; must post notice of FMLA rights in conspicuous place, and include in employee handbook.
State: same as federal FMLA, except no notice posting requirement.
ADA: must post notice of anti-discrimination rights in conspicuous place.
FEP: same as ADA.
Must post notice of workers' comp rights in conspicuous place.
ConfidentialityFederal: same as ADA.
State: same as ADA.
ADA: strict confidentiality of all medically-related information; collected and maintained on separate forms in medical file, which must be separate from personnel file, with access limited to persons with "need-to-know" (i.e., supervisors who need to know about restrictions or accommodations, safety personnel, or for insurance purposes).
FEP: same as ADA.
Same as ADA.
Individual liability for violationsFederal: yes.
State: probably.
ADA: no.
FEP: probably.
No.

IV. Areas of Divergence and Open Issues

A. ADA v. FMLA

  1. The FMLA permits employees to take leave to care for the serious health conditions" of children, spouses and parents, not just the employee.
  2. Short-term or part-time employees, who may not be entitled to a leave under the FMLA due to the period for eligibility, may be entitled to leave as an accommodation under the ADA.
  3. Not all "disabilities" under the ADA are "serious health conditions" under the FMLA and vice-versa. Generally speaking, the FMLA tends to cover a much broader range of conditions than those protected under the ADA. Examples of protected conditions under the FMLA, but not the ADA include: (1) mild hernia not substantially limiting a major life activity; (2) pregnancy; (3) in-patient treatment of pedophilia, pyromania, transvestitism and other mental disorders that are expressly excluded from coverage under the ADA; (4) skin conditions; (5) chicken pox; (6) appendicitis; (7) broken leg. Examples of protected conditions under the ADA, but not the FMLA include: (1) a hearing impairment that substantially limits a major life activity -- hearing -- but does not require inpatient care or an absence of more than three calendar days or absences due to a chronic condition; (2) non-incapacitating blindness.
  4. Current substance abuse is considered a "serious health condition" under the FMLA, but it is not a "disability" under the ADA. Thus, the FMLA affords leave for inpatient treatment of substance abuse. However, current substance abusers who do not seek protection under the FMLA (i.e., who do not seek treatment) can be disciplined or discharged.
  5. Medical inquiries under the FMLA are limited to one matter: whether the employee has a "serious health condition" that prevents the performance of essential job functions. In contrast, the ADA permits an employer to make medical inquiries as long as they are "job related" and "consistent with business necessity."
  6. Unlike the ADA, there is no "undue hardship" exception under the FMLA (except the very narrow "key employee" exception).
  7. The ADA permits leave only if such an accommodation may help an employee eventually perform the essential functions of the job. The FMLA does not require any certification that the leave will lead to a return to work.
  8. The obligation under the FMLA to provide unpaid leave to an eligible employee who requests it exists regardless of whether other accommodations are available that would allow the employee to remain at work. By contrast, the ADA allows an employer to deny an employee's request for leave and instead to provide the employee with an alternative reasonable accommodation that requires the employee to remain on the job.
  9. While both the ADA and the FMLA authorize intermittent leave and reduced schedules, different criteria apply. Under the ADA, an employer is required to permit such schedules only after certification that such an accommodation would enable the employee to perform the essential functions of the job in the future. Under the FMLA, the only prerequisite to eligibility for intermittent leave or a reduced schedule is medical necessity because of a serious health condition. Moreover, employers are allowed to temporarily transfer an employee to a job that better accommodates recurring periods of leave.
  10. An employee who has exhausted his or her FMLA leave may assert that a "reasonable accommodation" under the ADA for his or her disability would be additional paid time off in excess of the FMLA allowance. Thus, the fact that an employee has exhausted his or her 12 weeks of available FMLA leave does not necessarily discharge the employer from its obligation to provide additional leave under the ADA as a reasonable accommodation, absent undue hardship.
  11. Reinstatement rights under the ADA are, in the first instance, to the same position unless the employee cannot perform the essential functions of that job with reasonable accommodation. Reinstatement rights under the FMLA are to an "equivalent" position.

B. ADA versus Workers' Compensation

  1. An employee's eligibility for benefits under workers' compensation or other disability laws is not the deciding factor in determining whether an employee is covered by the ADA. Workers' compensation ratings focus on an employee's inability to perform a job with no accommodation, whereas the ADA requires an employer to focus on whether a reasonable accommodation will allow the employee to perform the essential functions of the job.
  2. An award of workers' compensation benefits or the assignment of a substantial disability rating does not automatically trigger protection under the ADA, nor does it provide the employee with a "record" of a disability. (i.e., temporary job-related injuries, such as a broken leg, are not disabilities under the ADA). Impairments resulting from occupational injuries may not be severe enough to substantially limit a major life activity, or they may be only temporary, non-chronic injuries with no long-term impact.
  3. Although an occupational injury compensable under workers' compensation may not qualify as a disability under the ADA, an employer may violate the ADA if the employee is "regarded as" disabled. Thus, when an employee has fully recovered from a temporary back impairment caused by lifting at work, an employer can violate the ADA by firing that employee because it believes that he will re-injure his back and become totally incapacitated.
  4. Under the workers' compensation act, the statutory duty to provide light duty jobs (where available) ends when: (a) the employee's medical treatment or rehabilitation is discontinued; or (b) the employee has reached a maximum level of rehabilitation in judgment of the workers' compensation commissioner. The ADA has no such cut-off.

C. FMLA v. Workers' Compensation

  1. Employees eligible for FMLA leave may refuse alternative work assignments, even if they are capable of performing them. Employees on workers' compensation leave risk loss of benefits if they refuse a light duty assignment which they are capable of performing.
  2. No statutory prohibition against terminating employees out on workers' compensation leave pursuant to "no-fault" leave policies that result in termination upon the occurrence of a threshold number of absences, without regard to the reason of absence. FMLA leave, however, cannot be counted against an employee for the purposes of applying an absenteeism policy.

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