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Two laws that protect workers can often confuse employersBy Robert Gregg
FMLA guarantees qualified employees up to 12 weeks of medical/family leave in a year. The ADA requires "reasonable accommodation" of employees' disabilities, which can include a reasonable leave of absence for treatment or counseling. (For information on other sorts of accommodation, see www.worksourcewi.com.) An ADA disability leave will generally qualify for FMLA protection, and the two will run together for the 12 weeks. That is where the intertwine ends. FMLA covers employers of more than 50 employees. The employee must have worked a year and 1,200 hours (1,000 hours in Wisconsin). ADA affects employers of 15 or more, and there is no qualifying time for the employee. FMLA covers all sorts of short-term and long-term conditions. A "disability" under the ADA must be a permanent condition. The FMLA only protects for 12 weeks, then the employment can be terminated. However, if the condition is a "disability," the ADA may require the employer to continue the leave of absence as long as it is "reasonable." There is no definition of "reasonable." In some cases a full year of leave was seen as reasonable. In other situations, less. Each ADA situation requires "individualized assessment," while the FMLA has a standard 12 weeks, and then you can be fired. To end the leave, an employer must show undue hardship. This requires real evidence, not just a manager's frustration. What are the specific, provable significant economic and operational harms? The employer can also terminate ADA leave when the employee or doctor certifies that it is "indefinite," and there is no prognosis of a reasonably certain date of return. The ADA does not require an open-ended leave. So in a disability leave situation, remember that 12 weeks ends FMLA coverage. The ADA gives continuing rights, and the requirement to "individually assess" before the leave can be halted, and employment terminated. There are other significant differences between FMLA and ADA. Under both, the employee can be required to provide medical certification of need for a leave, and a certification of fitness for return to duty. The ADA can require the employee's doctor to provide details of the disability diagnosis, the specific work effects, and recommendation for accommodation. The FMLA only requires medical certification that there is a "serious medical condition," the employee may not have to reveal what the specific condition might be. Under the ADA, the employer may communicate directly with the employee's medical providers about the job-related effects of the disability. The "interactive process" provisions of the ADA may require this, in detail, to explore accommodations. The FMLA prohibits an employer from contacting the medical provider. If there is any question about the medical condition the employer must retain its own medical professional, who can contact and have discussions with the employee's medical provider, to verify the validity of the FMLA leave. However, the employer is still not entitled to know medical details discussed between the two medical professionals. Once the 12 weeks are over, this FMLA prohibition ends. Light duty is a form of temporary ADA accommodation for a disability, and the employer may force light duty, whether the employee agrees or not. An employer may pick any accommodation which is reasonable. The disabled employee gets a say, but not one's preferred choice among reasonable alternatives. Under the FMLA, the employee has the ability to refuse light duty and stay out on leave. This ends after 12 weeks, and light duty can then be forced. If the employee cannot return to the regular job from FMLA at the end of 12 weeks, employment can be terminated. If an employee cannot resume the regular job due to a disability, the ADA requires the employer to place the person in any suitable vacancy at an equal or lower level. So there is no automatic termination. These are not all of the differences between the FMLA and ADA. The FMLA can be an important element in accommodation of a disability, but the ADA has more extensive coverage. There are different procedures and rights under each, and one should be careful not to mix and match, but to carefully follow each law's provisions -- even when they are operating at the same time. Robert Gregg is a partner with the Boardman Law Firm and has over 30 years of experience in the area of employment relations. madison.com ©2009 Capital Newspapers. All rights reserved. |
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