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The Intersection of FMLA and ADA


Hey, everyone. Paul Simon here with the law firm of Simon Paschal. Today, we’re going to talk about the interplay between the FMLA and ADA. As many of you probably know, the FLMA basically gives unpaid leave up to 12 weeks if you have a serious medical condition and it applies to companies who have 50 employees within a 75 mile radius. So not necessarily applies to every company, but a decent amount of companies fall under FMLA. Then you have the ADA, which applies to employers who have 15 or more employees. Obviously, a lot more employers have to abide by the regulations under the ADA.

Where we see the FMLA and ADA interplay oftentimes is what these largest companies who have an employee who’s on FLMA, that employee is coming up on exhausting their FMLA and gives an indication that they’re not going to be able to return to full time work, but they may still need some sort of light duty or some sort of intermittent leave. Oftentimes, we see that employers simply look and say, “Well, under the FMLA, once they’ve exhausted their 12 weeks, I’m no longer obligated to continue to give them intermittent leave or allow them to be on FMLA unpaid leave, and therefore, one of the items I can do is terminate the employee.”

Generally, that is correct. But what employers really need to do and what their tip is today is whenever an employee is coming up on exhausting their FMLA and has given some sort of indication that they’re not going to be able to come back full time, so take a look at the ADA. Remember, ADA is going to require that an employer provide a reasonable accommodation if the employee has a disability. So every serious medical condition is not necessarily a disability, but it can be. So that’s why the tip is to take a look and say, “Do I need to do an ADA reasonable accommodation analysis and provide this employee some sort of restricted light duty when they return, or some sort of intermittent leave, which is one or two days a week they work from home, or one day a month they’re working from home?

Again under the ADA, if they fall under that as a disability, that may be a reasonable combination. Again, the tip today is whenever an FMLA employee is coming up on the exhaustion of their FMLA, make sure you at least take a look at the ADA and say, “Do we need to now take a look at this or are we good to just proceed under the assumption that FMLA no longer applies?” Thank you.

 

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