This session was presented on September 15, 2022
Leave management can be complex and confusing for any employer. Between the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), many employers have a hard time keeping up with all the requirements. In this webinar, we’ll examine key regulations, common issues, and employer best practices to help ensure that you’re taking the appropriate steps when it comes to managing employee leaves. We’ll help you figure out where the FMLA and ADA overlap, how they differ, and how to administer each.
… go ahead and jump in here. Again, welcome everyone, and thank you so much for joining me. Totally excited to welcome you to our training, Leaves of Absence: Navigating the FMLA and the ADA. Before we jump in, I would love to just briefly introduce myself. So my name is Sarah, and I’ve worked in a number of HR roles and I’m also [inaudible 00:00:20] state capacity. I’ve got my PHR certification, I’m a training specialist, and I’ve currently seven years with Mineral, so I’ve been here for a while.
All right. Well, let’s go ahead and move on. So a couple of quick housekeeping items. We will email you the recording of this presentation and the slides within about 24 hours. I’ll hold a couple of pop quizzes for you later on, so instead of polls, I’m switching it up a little so we’ll see if you can answer those correctly. Stay tuned. And finally, just use the Q&A box for any questions. I’ll answer as many as I can during the brief Q&A session at the end, usually I try and give about three or four minutes. So I will be able to monitor those at the end.
Okay. So as may you may suspect, I do answer a lot of HR questions throughout the day. At times we hear some questions seasonally, or just for a couple of months out of the year, so for example, maybe questions about W-2s or the EEO-1 reporting. We get questions on other topics off and on for a year or two, such as when major federal legislation is enacted or events occur like the COVID-19 pandemic. Some topics though, and they never go away, and leaves of absence are definitely among them. So whether your business is large or small, you’re likely to have employees who will ask to take a leave for themselves or to care for someone else, and that’s why the FMLA and the ADA are consistent topics of interest.
So, as you can see from the agenda here on the slide, I’ll be giving you an overview of the federal Family and Medical Leave Act, also called the FMLA, and the federal Americans with Disabilities Act, also called the ADA. We will dig into the differences and the overlap between the two, as well as how to manage employees under each. It’s important to note that many states have their own family and medical leave or disability discrimination laws, so do be aware of laws in your own state, in addition to [inaudible 00:02:38] laws that we’re discussing today.
Okay. Enough preamble, let’s go ahead and jump in here. So what is the Family and Medical Leave Act? I’ll focus on this for the next few slides. Okay. So this is a piece of legislation that we received in the early ’90s. The administration at that time was trying to balance the demands of businesses and the workplace with the needs of families. Now, before we had the FMLA, there was no real law on things like taking maternity leave or taking leave for a surgery, this was the first federal law that directly provided job-protected leave for employees who needed it.
The law is very specific, which is one of the best things about the FMLA. It defines the specific reasons leave may be taken, defines the period for leave, which is 12 calendar weeks in most cases, and it grants two protections for employees who take leave. So first, employees enjoy job restoration rights, meaning they can take leave and then come back to their same job or to an equivalent job. And then second, they enjoy group health benefits continuation rights, so if an employee has health or dental insurance, they enjoy the right to continue those benefits during the leave as if they were actively at work.
An employer must determine whether it’s covered by the FMLA and then if so, whether their employees are eligible. So these two sets of criteria sometimes lead to some confusion, particularly when it comes to the employee count and location. So first, which employers are covered by this law? Well, if you’re on the webinar with me today and you’re a smaller business with fewer than 50, five-zero, 50 total employees this year or last, then you are not covered by FMLA. FMLA is intended for those of you who have 50 or more employees.
And what you need to do to determine this is to look at each work week individually, if you had 50 or more employees for at least 20 work weeks in the current or preceding calendar year, you’re covered for the full year. So if you had 50 employees on the payroll roster for at least 20 work weeks in 2021, you’re a covered employer for all of 2022. An employee counts towards this threshold, regardless of their classification as full-time, part-time, seasonal, temporary, and an employee counts towards this if they’re on your payroll roster, regardless of whether or not any compensation was received during the work week. So an employee on an unpaid leave of absence does count towards this threshold.
Coverage under the FMLA ends when an employer accumulates 20 or more work weeks with less than 50 employees during the year resulting in an end to coverage for the upcoming year. And then next, an employee is eligible to take FMLA leave if they worked for a covered employer, worked for you for at least 12 months. So they have to have at least a year of service within the last seven years. For this specific requirement, our focus is on the 12 months of total service for the employer, meaning time on leaves or total service when there’s a gap in employment and rehire are counted.
Then at the time the employee requests the leave, they have to have at least 1,250 hours worked in the 12 months immediately prior to leave. And then lastly, they have to work at, or report into a location with 50 or more employees within a 75-mile radius. Remote workers may be included in this criteria in some cases, so you may want to consult with an HR expert for more information for any remote work situations you’ve got.
Okay. So now I want to walk through the different reasons for FMLA leave. There are five reasons when an eligible employee may take leave under the FMLA, and we’ll look at each of these briefly now. Okay. So the first reason for FMLA leave is a serious health condition of the employee. So let’s say I need to have back surgery, or I receive a bipolar diagnosis and I need some time off from work for treatment, these would be cases in which this leave would apply as it’s related to my own serious health condition.
The way that the FMLA defines a serious health condition is very technical, which is good, because that gives us as employers very clear criteria and guidelines for this leave. We’re also able to have an employee’s treating physician complete a certification form, which really helps make it clear whether FMLA applies or not. So what is a serious health condition? For FMLA purposes, it’s defined as any period of incapacity or treatment connected with inpatient care such as an overnight stay in a hospital, hospice, or residential medical care facility, or requiring absence of more than three calendar days from work that also involves continuing treatment by a healthcare provider. The absence could be due to pregnancy or for prenatal care, or due to a chronic serious health condition such as asthma, diabetes, epilepsy, that sort of thing.
And then finally, the absence could be to receive multiple treatments and to recover from treatments by a healthcare provider for a condition that would likely result in incapacity of more than three consecutive days if left untreated. So this would include things like chemotherapy, physical therapy, or dialysis. Do note that the FMLA may apply to an employee who has a terminal illness, and although the treatment is not likely to reverse that or make them completely well, it does not mean the FMLA doesn’t apply. FMLA may also apply when an employee needs to take leave on an intermittent basis, and these are often the most difficult leaves for employers to manage because the leave occurs from time to time and is far less predictable. But employers should be prepared to offer intermittent or reduced schedule leave when appropriate.
So for instance, if an employer has an employee who needs to go to chemotherapy treatments in the middle of the day on Tuesdays, that would be an appropriate use of intermittent FMLA leave. An employee’s request for more than three days off of work doesn’t necessarily mean FMLA applies, but it definitely means that you need to start exploring the possibility that it does. It’s also important to start the clock on FMLA leave so that it can be properly designated for the full protected leave. And it’s important to keep in mind that we don’t get to retroactively designate FMLA after the fact, if doing so would hurt the employee.
Okay. So reason number two for FMLA leave is to care for a serious ill family member. So, for example, if I needed to take leave because my mother was very ill and I needed to care for her, then I might be eligible. The definition of serious health condition is the same here as it is for the employee’s own serious health condition, and also may include psychological comfort or care such as being by someone’s side while they’re in the hospital.
It’s important to note here that under the FMLA, child means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18 or age 18 or older, and incapable of self care because of a mental or physical disability at the time that FMLA leave is to begin. And also, do note here that in-laws, grandparents, and siblings are not considered family members for the purpose of protected FMLA leave.
Okay. The third reason for leave is to bond with a newborn or a newly placed child. This is often referred to as baby bonding leave, and depending on your workforce, it’s possible that you’ll see this one the most. This leave is for a new mother or a new father, and I always like to point out that it is available for both parents. Also, it doesn’t matter whether the person actually gave birth or not, it’s available for new mothers, new fathers, adoptive parents, and foster parents. All of these people are eligible for up to 12 weeks of FMLA leave, assuming they meet the other eligibility requirements, this is irrespective of marital status as well.
So bonding leave has to be taken within the first 12 months after the birth or placement of the child. And an employer is not required to allow this type of FMLA leave to be taken intermittently. Specific to bonding leave only, do note that if both parents work for the same employer, their bonding time is limited to 12 weeks total, rather than 12 weeks for each parent. And then finally, keep in mind here that for an employee who uses FMLA for pregnancy disability leave, they may use the remainder of their 12 weeks of FMLA leave for bonding.
Okay. So then we have two newer reasons for leave. Military family leaves were added after the FMLA was initially introduced. These do not apply to the military members themselves, which is actually the most common misconception about these reasons for leave, military members receive leave under other federal laws, so instead, the FMLA applies to their family members.
So first here, an employee could take up to 12 weeks of leave if their spouse, child, or parent is called to active duty, and they need to take care of things. So for example, they may need to arrange childcare or make financial or legal arrangements. They may need to attend post-deployment activities, they may need to attend military events or go to the sendoff, so all of those activities are reasons for leave under the military exigency category under the FMLA.
And then the last reason an employee may take leave under the FMLA is military family caregiver leave. So this is the only leave in which the employee would be eligible for up to 26 weeks of leave, as opposed to 12 weeks for all of the rest. So this is for when an employee who is a spouse, son, daughter, parent, or next of kin to a covered service member, and this leave is for an employee who has a family member who suffered a duty-related injury or illness. So this can be a service member or a veteran, and the family member is an employee of yours, and they need to leave to care for them.
So I know that’s a lot of information about the five reasons for FMLA leave, but it’s good to know all of these, even though several of them are unlikely be used in your workplace. Again, we will email you the PDF of these slides within 24 hours, as well as the recording here, and you can always refer back to these slides if you find yourself in a situation where you’re wondering whether or not an employee’s request for leave is FMLA-eligible. So again, stay tuned for [inaudible 00:15:13] tomorrow. Grabs for the tea real quick.
Okay. So now let’s talk about pay and FMLA. We get a lot of questions about whether or not we have to pay employees when they’re on FMLA leave. So let’s clear that up right away, the law does not require any pay. It requires just those two things that we covered earlier, job restoration rights and benefits, continuation. However, while the law doesn’t require pay, the employee can use their accrued paid time off while on leave, and under some circumstances, an employer can even force the use of accrued paid time off like vacation, PTO, or sick leave on the front end of leave to run concurrent with FMLA.
I’d like to point out a couple of wage-replacement benefits that may run concurrently with FMLA and may provide partially paid leave. First, a handful of states have temporary disability or paid family leave insurance benefits, which are programs run through the state. Second, an employer may have a private disability insurance plan. If any apply, employers are responsible for educating employees on the programs and how they go about initiating a claim. Finally, an employee with a work-related injury or illness may collect workers’ compensation payments during leave. But again, the employer is not required to pay anything to an employee during an FMLA leave of absence, but keep in mind if you provide other types of paid leaves, you’ll want to evaluate those benefits, and whether someone on FMLA should also be eligible to avoid any discrimination risk.
Okay, so now let’s talk about benefits during leave. As I’ve mentioned, group health benefits need to continue during FMLA leave if they were in place before the employee began leave. Remember, however that COBRA doesn’t apply here as COBRA is for employees no longer covered under the group health plan, usually because of a reduction in hours or termination of employment. An employee on FMLA leave is still covered under your active insurance policy during leave, and you can require that they remit payment during leave, which is usually on a monthly basis for their normal contribution to insurance.
So let’s say that the insurance is split evenly, the company pays 50% of the insurance and the employee pays 50% of the insurance premium. During the FMLA leave, the company has to continue to make its regular contribution, and the company can require the employee to remit their 50% contribution for the insurance premium while on leave as well. Essentially, the employer requires the employee to send in their payment on a regular schedule.
While this isn’t the only way to handle it, it’s the most commonly used option. If the employee requests it, another option is to have an employee prepay for their insurance premium before they go out on leave. Some employees actually prefer this option as they can pay for it all through a payroll deduction, which is a pre-taxed payment as opposed to remitting a personal payment during leave. Note that this arrangement only applies if the employer has a cafeteria plan also known as a pre-tax arrangement for collecting employee payments, kind of a mouthful.
Another option, and one that some very generous employers elect is to cover 100% of the premium during the leave, and then make an increased catch-up arrangement for the employee share, once they’ve returned to work. This option does have a downside. If the employee decides not to return to work after leave, you may not be able to recoup those premiums. You can send bills and request that the insurance is repaid, but it’s often pretty difficult to enforce this because there’s not really a lot of recourse here if an employee doesn’t pay.
I’d like to point out that on our platform, we do have all the forms that you need to manage FMLA, including a letter that explains how the benefits will be managed during this time. If employees are not notified of these options by the time leave begins, it may be difficult to exercise an option to end benefits for non-payment during leave, so keep that in mind.
Okay. So let’s talk about job restoration no. In most cases, when an employee takes leave and is ready to return, they must be returned to the same or an equivalent position. So let’s say our employee, Ava, took leave and she was out for 10 weeks, and now she’s got her return-to-work release and she’s ready to return, in almost all cases, the company has to provide complete job restoration. It says in the law that an employee must be returned to the same or an equivalent position, but this equivalent position has been interpreted very strictly. It would need to be equivalent in terms of responsibility, pay, hours, benefits, supervision level, which shift the employee is on, these all need to be equivalent to the position the employee held prior to leave.
So the best practice is to return the employee to the same position, and if you’re going to use an equivalent position instead, you really need to make sure that it’s a legitimately equivalent position. That said, there are some exceptions. So first there’s a provision in the law for key employees, these would be your highest paid 10% of employees. If restoring them is going to create a substantial and grievous economic injury, that’s the way it’s phrased in the law, then you do not have to restore key employees. But really, this case is very rare, so we do recommend attempting to restore everyone unless they would have been laid off anyway. Please also note that an employee must be a designated key employee at the time the employee requests leave or upon its commencement.
Then the second exception to job restoration exists when an employer returning from leave would have been laid off, regardless of being on leave. Plainly stated, an employee does not enjoy additional benefits above and beyond what their similarly situated coworkers would receive while they are on leave. So if an entire department or shift needs to be laid off or eliminated, an employee in one of those groups could be laid off even though they’re out on protected leave. Note, this does not apply to any employee who’s temporary replacement during leave is a better or a more efficient performer.
Okay. So let’s talk about the FMLA paperwork to end this section. And before we move on, I just want to mention, again, that all the forms you need to manage FMLA leave can be found on our platform, so if you have our service, you can download our FMLA administration procedures guide. It does include all the forms, the criteria for determining when they should be used and instructions on completing them. If you have questions about any of that, go ahead and talk to your regular rep to see if you have our service.
Okay. So first we recommend that an employee complete a request form for leave. This isn’t required, but it’s a good way to begin documentation of the leave. Note that in most cases employees don’t know to request FMLA-specific leave, the employer is responsible to identify that the leave may be FMLA qualifying and a leave of absence request form can help the employer make this determination. Again, this form is not required under the law, and it shouldn’t be used to delay leave or providing the FMLA forms and notices to the employee, so definitely don’t do that.
Next, the WH-381, the Notification of Eligibility, Rights and Responsibilities, or an equivalent notice is required. I recommend using this and the other great forms that the Department of Labor has provided for us to make sure the notice requirements are met. The rights and responsibilities notice must be provided within five business days after an employee has informed management of the need for leave. Of note, this notice is required even if the employee is not eligible for FMLA leave, meaning you use this form to notify an employee if they are eligible for FMLA leave based on the criteria we reviewed earlier.
On the WH-381, we’re going to indicate whether we’re requesting completion of a certification form for leave, which is the next item on the list here. I’ve listed several variations of this form. There are different versions, depending on the reason that the employee is requesting leave. We can ask that an employee provide a completed certification form within a minimum 15 calendar days, that’s one-five. Once completed by a medical provider, we’re going to use this form to confirm that the reason for leave is FMLA-qualifying.
Next is the WH-382, the Designation Notice, this form is also required. Once you have enough information to determine that the employee’s requested leave qualifies as FMLA leave, you must provide the employee with this designation notice within five business days. Next, I listed a job description here. If you have a policy or practice of requiring all similarly-situated employees who take leave for their own serious health condition to present a certification from their healthcare provider indicating that they’re able to return to work, this can be a condition of resorting an employee to work following leave.
Notably, if you wish to return that a fitness for duty certification address for the employee’s ability to perform those essential functions of their position upon the return, you must indicate this on the Designation Notice, again, the WH-382, and you must provide the employee a list of the essential functions for their position ahead of time, so the job description will help here.
And lastly, as I referred to previously, the benefits continuation letter is optional, but it’s really helpful. Now that’s a bunch of information on the various FMLA forms, but just remember that the only two forms indicated as required and should be used, so if you don’t do anything else, you’ve just got to use these two forms for FMLA since they designate the leave, or what I refer to as start the clock on the leave.
Okay. So that was a long section. Usually I have a survey, not a survey, a poll here to get your opinion on what you do. But I decided to mix it up and see if you’re all awake. So this is actually a pop quiz to see if you remember this. So let me go ahead and pull up this. So what do you think, which is not a reason for FMLA leave? So do you think it’s not serious health condition of the employee? Caring for a family member with a serious health condition? Leave for an employee to go perform military service, or for bonding with a recently adopted child? So looks like about 35% of you have participated, I’ll leave this up another few seconds here. Looks like I can’t fool many of you, I guess I shouldn’t be disappointed about that. We’re up to 60% of you have participated. I’ll give you another few seconds.
Okay. Going to go ahead and end this. Let’s take a look at what you all thought here. So the accurate answer, so taking leave for an employee who is going to perform military service is not a reason for FMLA. Remember, the military ones are connected to family members and people who are not the actual person in the military. So well done, everyone. Couldn’t fool you there.
Okay, cool. So let’s switch gears now and talk about the ADA, which is the Americans with Disabilities Act. So the ADA is a civil rights law enacted in 1990, and it prohibits discrimination against folks with disabilities in all areas of public life, including employment. So we all know that we’re not allowed to discriminate against someone because they’re in a protected class such as race, religion, gender, or ethnicity, and many more, and we know that disability is one of these protected classes. But unlike the other protected classes, not only can we not discriminate against somebody with a disability, but we have to go a step further and offer a reasonable accommodation to an employee or an applicant who is disabled. We’ll talk more about a reasonable accommodation in just a moment, so pause on that.
The federal ADA laws apply to you if you have 15, one-five, 15 or more employees. However, do keep in mind that many states actually extend these protections to smaller employers as well, so I feel like I’m going to say this a lot, but just make sure you’re aware of your state laws on top of these federal laws we’re talking about.
So the ADA requires that employers protect employees from disability discrimination in the workplace so that qualified employees with disabilities are afforded the same employment opportunities and rights as employees without disabilities. Under the ADA, employers must provide reasonable accommodations to an otherwise qualified applicant or employee, unless doing so poses an undue hardship on the employer. A reasonable accommodation is a workplace change or modification that accommodates an individual with a disability, and it may include a temporary leave of absence, modified work schedules, so for example, changing the start or end times, or allowing for time off for medical appointments.
It could include modification or purchase of equipment, so maybe a standing desk for an employee, or it could require changing a workplace policy that prohibits food at an employee’s desk, so let’s say maybe for an individual with diabetes. A reasonable accommodation does not include removing essential job functions, creating new jobs, or providing personal need items such as eyeglasses or mobility aids.
I want to pause for a minute here and let you know that if you are in a position where an employee has asked you for a workplace modification, now would be a really great time to contact your HR professional. We receive a lot of questions about the definition of an undue hardship, and many employers are quick to say that, “The workplace accommodation that’s been requested is undue.” I just want to say that an undue hardship is broadly defined as a significant difficulty or expense, and it requires an individual analysis for each situation. And whether something is truly an undue hardship, it could be challenged in court. So again, I would say HR professionals are going to come in really handy when trying to identify this piece.
Okay. So you might be wondering what a disability is under the ADA. Well, the federal ADA guidelines define a disability as a physical or mental impairment that substantially limits one or more major life activities. It’s not mandatory that the disability is related to the job, and the definition of major life activity is very broad and includes… excuse me… it includes eating, breathing, sleeping, walking, talking, reading, and much more. Like I said, it’s a very broad definition. To attempt to simplify an otherwise intricate law, a disability impedes an individual from performing activities that an average person in the general population can perform with little or no difficulty.
While the ADA is broad, and it doesn’t offer the firm definitions like the FMLA, an employer can request that the employee’s healthcare provider complete a medical inquiry form to tell us whether the individual has a disability as defined by the law. Notably, this is not our call to make, this is up to the employee’s medical professional, but I just wanted you to be aware of the ADA’s definition of a disability.
As for eligibility, there’s no length of service requirement like the FMLA, employees enjoy protection under the ADA from day number one of employment. As noted previously, we’ll let the employee’s healthcare provider make the decision as to whether or not the individual has a disability under the law, by answering some questions for us via the medical inquiry form.
Now, let’s talk a bit more about reasonable accommodations. Basically, the company is required to offer accommodations to a disabled employee who requests assistance with performing the job’s essential functions. This is as long as the accommodation does not cause undue hardship to the employer. So again, I want to dig a little more into what undue hardship means. It’s really quite difficult to truly define. The Equal Employment Opportunity Commission, or the EEOC, has actually outlined an undue hardship for us. They look at the employer’s size, the company’s resources, and the way the operations are structured when determining whether a certain accommodation would be an undue hardship to the employer.
Again, this is a case by case basis, so a small business would be required to do much less than maybe a large fortune 500 company in terms of accommodations. If the employee’s request results in an action that requires significant difficulty or expense, again, it may rise to that level of undue hardship, no matter the size of the employer. So if that was the case, the employer could deny the request.
One thing I do always like to point out is that the employee does not get to pick their accommodation. If you have an employee that comes to you and says, “Oh, I have a permanent back injury, I need to work from home from now on,” you’d request the employee’s treating physician complete that ADA medical inquiry form, and their doctor, on that form, would indicate what the limitations are and whether or not it’s due to a disability. The form will include some accommodation ideas, and in this case for the back injury, it may be that we can buy them a new chair or a standing desk and provide a hybrid work arrangement for when the employee has flareups, that would be perfectly acceptable as an accommodation for their disability.
So we don’t always have to give the employee the accommodation they want, if there are other accommodations that are just as effective. What we do have to do is look at our accommodation options and brainstorm with the employee what accommodations might be reasonable. Note that when an employee needs to recuperate from complications or treatment for the disability, a leave of absence or a reduced or modified schedule may be accommodations, both of those.
So here are a couple of the EEOC’s criteria for an undue hardship. Undue hardship refers not only to the financial difficulty, but to reasonable accommodations that are, again, unduly extensive, or disruptive, or those that would fundamentally alter the nature or operation of the business. So if you determine that your company cannot accommodate an employee’s request for ADA leave or accommodation request because it would create an undue hardship, I recommend clearly documenting the legitimate business reasons for this, meaning, document the tangible business effects that granting the request would create for the company.
Also, I would use extreme caution in determining a short leave, so maybe that of a few weeks or a few months. I would use extreme caution in determining that an undue hardship. A leave is more likely to be deemed an undue hardship, the more complex the nature of the employee’s work, the more difficult it would be to replace the employee with a temporary worker, or the more difficult it would be to redistribute that employee’s work.
So a job description is critical for your general hiring process, but it’s also useful when there are accommodation requests. The ADA does not require employers to develop or maintain job descriptions, but a written job description that’s prepared for a job will be considered as evidence along with other relevant factors. I recommend including the essential functions of the job on this document, so think day in the life when listing the essential job functions. When considering job descriptions in the ADA, it will be most helpful if it focuses on the results or outcome of a job function, not solely on the way it’s performed. A reasonable accommodation may enable a person with a disability to accomplish a job function in a manner that’s different from the way an employee who does not have a disability may accomplish the very same function.
Then we’ll want to include the physical requirements of the job, the EEOC statement, the at will statement, and the ADA statement. The ADA statement will prove helpful in the event that an employer requests a reasonable accommodation, and the physical requirements of the job are also part of the ADA interactive process or in the event of a worker’s compensation claim. This ADA language found on the job description will confirm that an employee can complete the essential functions of the job with or without a reasonable accommodation upon accepting the position.
The EEOC has said that whenever you have an employee request an accommodation, you need to go through an ADA-compliant interactive process. So the interactive process does have the tendency to catch employers off guard, but it actually provides a useful framework to guide both the employer and the employee. It’s really just a fancy way of saying, “Let’s communicate with the employee about their request.” It’s a way to balance the employee and employer’s needs.
I want to add that you’re not responsible or expected to be aware of an employee’s need for an accommodation where it might not otherwise be obvious, such as the use of a wheelchair. The burden is on the employee to request an accommodation, and then it’s your responsibility to engage in this interactive process with the employee to assess that request. Please keep in mind that an employee may not expressly use the words ADA or accommodation in their request, and they don’t actually have to. So any time an employee indicates that they’re having a problem and the problem is related to a medical condition, the employer should consider whether the employee is making a request for accommodation under the ADA.
The goal of the interactive process is just to allow the employee to perform their existing job through a reasonable accommodation. If that’s not feasible, employers must consider accommodation through job reassignment or granting a temporary leave of absence.
Okay, let’s talk about pay, benefits, and job restoration rights under the ADA when an employee takes leave or has a temporary reduced schedule. So first, pay is also not required during leave for an ADA accommodation, so this can be unpaid leave. Again, the employee may be eligible for temporary disability insurance under a state or a private plan if that’s available, and we’ll just want to educate an employee on either option, if it’s applicable.
With regard to continuing benefits such as group health, dental, vision, and other insurances, during an ADA leave, this is an area where you’ll want to review your group health plan rules for eligibility criteria. If the leave is not covered by FMLA or any similar state law, then the eligibility terms of the group health plans will determine whether the employee can remain enrolled while on unpaid leave. In many cases, they cannot remain enrolled or can only remain covered for a limited amount of time. To confirm this, you should pull your plan materials like the summary plan description or SPD, the insurance carriers certificate of coverage, or any policies referenced in the SPD.
Plans will often contain language saying, “The employee must be working X number of hours per week, unless they’re on a benefit-protected leave or other paid leave.” If that’s what your plan says, this generally means that they are no longer eligible for the active coverage. In that case, they will be eligible for federal COBRA based on a reduction in hours if the employer has 20 or more employees, or maybe eligible for a state continuation also called mini COBRA. Benefits can end due to a reduction of hours as the COBRA-qualifying reason in this situation.
Note that if your plan allows the employee to stay on benefits, you will need to check your plan terms to address payment, typically, the cost share is the same. This can have nuance, and you’re welcome to chat with your HR expert for more information on that. Lastly, we have to offer complete job restoration, unless doing so would cause us an undo hardship, hopefully all of this is familiar language at this point.
Okay. And then lastly is ADA paperwork. I may have touched on this a little already. So this is the document that lets us know whether the employee even has a disability and whether we need to continue traveling down that ADA interactive process to consider providing a reasonable accommodation. If the answer is no, that the employee does not have a disability, then we’ll treat the request for leave as we would any other personal leave request.
We do have sample accommodation request forms you can provide to employees on our platform. The next of best practice is to give the employee a letter after the interactive process, clearly stating all of the accommodations that have been approved. The letter may also perhaps note any accommodations that were denied, and you’ll keep a copy of this letter in the employee’s medical or ADA file.
One thing I like to mention and really emphasize here is that whenever an employee requests an accommodation, including leave, we don’t require the ADA medical inquiry form. Instead, we tell the employee that the form is completely optional for their medical provider to complete. As part of the interactive process, the employee is required to provide you with this information unless the disability is obvious. If an employee refuses to participate in the interactive process, so maybe not providing this or an equivalent form, they may not be eligible for an accommodation, and if the accommodation is leave, it would not be protected under your attendance policy.
Finally, the best practice is to offer a temporary accommodation as you go through that interactive process. So a good rule of thumb is to request the documentation for non-obvious disabilities within 15 calendar days, which is similar to the FMLA. The 15-day period is not required, this is simply a suggestion from a consistency perspective, you can allow more time if needed.
Okay. So I am running a little bit behind here, I can tell, so I’m going to try and speed up a little. Let’s go ahead and talk more about the differences between the ADA and FMLA and how they work together. So the ADA is disability discrimination prevention law, while the FMLA is a leave protections law. ADA affects a lot of parts of employment, while the FMLA is only leave and benefits continuation. So the first major difference between them is eligibility. Sometimes an employee will be eligible for just FMLA or for just a leave as an ADA accommodation, and sometimes they’re eligible for both.
The definitions in general are very different. For instance, an employee may have a serious health condition under the FMLA, but not a disability under the ADA, and vice versa. Some conditions though will be covered under both. Keep in mind that while the FMLA provides numerous reasons for leave, the ADA is specific to the employee’s own disability. In a nutshell, the ADA protects an employee from harassment or discrimination based on a disability and affects more areas of the employee life cycle, but the FMLA tends to grant leave for a broader range of conditions.
I really like this slide because it illustrates the difference between a serious health condition under the FMLA and a disability under the ADA. I’ll skip talking about most of this, but just note that the last row in the table with examples of neither is something important, and that we get a lot of questions about. So for example, if an employee misses work for a cold or a stomach virus, or getting a cavity filled, these just aren’t big enough to be covered under either the FMLA or ADA. For headaches, I put other than migraines because migraines may actually be considered a disability under the ADA, but if I just had a headache for a couple of days, probably not, so I like this chart to just really illustrate some of the differences and similarities here.
I always like to point out that you don’t want to forget any state-specific leaves, I know at this point I sound like a broken record, but there really are a number of states that have leaves that will overlap with the ADA and the FMLA. Be aware too that sometimes a state leave applies to those with fewer employees, sometimes they reduce the eligibility requirements, and sometimes they have a more broad definition of eligible medical condition. So it’s also likely that while similar to the federal FMLA, that a state leave will be more generous.
When there are state and federal leaves like this, you always want to apply the most beneficial leave to the employee, but designate leave under both simultaneously or consecutively when applicable. All right. I know you’re going to be disappointed. I’m going to skip this for the sake of time. I want to make sure we’ve got enough time to get a few Q&A’s in. I will just say that in terms of how many employees must an employer have to be covered, the answer is going to be 15, one-five, 15. All right. Sorry I didn’t include you in that one.
Let’s go ahead and chat now about administering leave, so just some practical guidelines when it comes to this. So let’s start here with the requests for leaves. I briefly mentioned this, but I want to let you know that an employee does not need to use that verbiage of the law in their request. Again, it’s really up to us as employers and HR professionals to recognize that a leave or accommodation may be what’s meant. So for example, if an employee is missing a whole lot of work and they keep saying, “I’m so sorry, I just have this serious problem with my stomach and I just need some time off,” and hearing this, hopefully in our minds we should be going like, “I wonder if this could be ADA or FMLA, or both?” In that case, we will provide the employee with the appropriate forms and notices.
I also like to point out that when both apply, FMLA is first. So let’s say an employee needs 26 weeks of leave, they’re going to be out for six months for a medical condition. First, the employee needs to exhaust their FMLA-protected leave, then the rest of the leave will be considered under ADA as an accommodation, but we always want FMLA to be exhausted first.
When you have an employee out on leave, it’s really important that you track their leave very carefully, make sure that you have a good attendance calendar and that you’re carefully tracking their leave. Make sure that you’re continuing their group health benefits. Again, while on ADA, we can request that they pay the full amount, but under FMLA, the employee only has to pay their portion of the insurance premium.
We do like good communication during this time, and I often ask that an employee who’s going to be out for an extended period of time, communicate with some regularity. So for example, if an employee is going to be out for 10 weeks, I might ask them to contact me five weeks from now to confirm nothing has changed, and then again, near the end of their leave period. I also ask that if it’s the end of FMLA and the employee is still not ready to come back, they need to contact me so that we can consider whether we can grant additional leave, so I like to make all of that very clear. Now, we don’t want to overdo it here, so we don’t want to require the employee to call us every single day, or every Monday and every Friday, or anything like that, but it is fine to ask the employee to make some reasonable contact during this time that they’re out.
Okay. So finally, last slide here, and then we’ll be able to jump into some Q&A, I really want to chat about what happens when the employee is ready to come back from leave. So I do prefer that an employee let me know about a week ahead of time when they’re ready to return, and I put this in a letter to them at that time I designate leave. I prefer that so that I can plan for their return and coordinate scheduling. I also like if it’s the end of FMLA and the employee is still not ready to come back, they need to contact me so that we can consider, again, whether we can grant additional leave.
So for any employee who’s out for an extended period of time, it’s a best practice to always require a return-to-work release from their doctor so that we can ensure that it’s safe for them to return to work. And again, we’re not wanting to make that determination, again, make sure that the doctor is the one helping with that.
And then finally, remember that we have to reinstate the employee at the end of leave. Under the FMLA, it’s the same equivalent job. Under the ADA, it’s the same position, unless it creates an undue hardship to return them. So keep these things in mind when an employee is returning from leave.
Okay, awesome. I maybe didn’t have to rush quite as much as I thought. But this is perfect, I really appreciate you sticking with me, I know it’s a whole lot of information we covered today. I haven’t had a chance yet, but I’m about to review the questions you chatted in. So give me just a moment, I’m happy to answer some of these. So yeah, I’m going to go ahead and mute myself for a second and take a sip of tea, review some of the questions, and then I’ll get going. I’ll be right back.
All right. So apparently I’ve got a garbage truck outside, I certainly hope you all can’t hear that too loud, and hopefully it’ll move on soon. I have a question here I’ll just start by jumping in with, it’s a great one. Excuse me. So someone asked, “What if there’s two qualifying events during the same year, what about then?” Good question. So you’ll want to assess eligibility for leave like you did for the second event, with the first event, and still designate leave if qualified. An employee might be eligible for leave more than once a year, but just remember that they’re only entitled to that 12 weeks of leave in a single 12-month period. So really having a second need for leave, it doesn’t extend the length of the FMLA leave, you can stick to the guardrails of the 12 weeks of leave in that 12-month period. Good question.
Let’s see here. Someone wants to know more about whether an employee can take intermittent FMLA leave? So the FMLA permits employees to, remember, work a reduced schedule or take intermittent leave when it’s medically necessary, so it could be to care for, maybe, a really ill family member, or maybe because of the employee’s own serious health condition. However, for purposes of caring and bonding with a new baby employers… excuse me… employees can only use reduced schedule or intermittent leave with the employer’s approval. So in terms of allowing or granting intermittent leave or reduced hours for baby bonding, that piece is up to the employer’s discretion.
And when you’re trying to make this determination, just be sure that you’re following all of your, or any of your policies and practices already in place, and then treat the employee in a manner that’s consistent with how other employees in similar situations have been treated in the past. And I actually feel like that’s very similar advice for a lot of situations in employment, just making sure that everyone is being treated in similar ways for similar situations.
Now, if you do decide to approve a reduced-hour schedule for baby bonding, which I think is great, only the amount of leave actually taken while on the reduced scheduled leave can be charged as FMLA leave. So if the employee is working, I don’t know, half time for eight weeks, that would be charged as four weeks of FMLA leave, so I hope that makes sense. Good question.
Let’s see, what else you all have been asking here? I do see a few questions about hardship. So I guess I see a few, but one person asked, “Can we deny an employee’s FMLA leave request if it creates a hardship?” I know, I know. An employer may not deny an eligible employee’s FMLA leave request, period. The only exception to this would be if an employee doesn’t provide the requested certification form to support that need for the FMLA leave. But aside from this, assuming that you as the employer are covered by FMLA and the employee is meeting all of the eligibility criteria, you as the employer, you are prohibited from interfering with or denying the exercise of FMLA rights.
A covered employer may also deny restoration to a key employee, so do remember that piece. But again, that would be to prevent, I think, it’s substantial and grievous economic injury to its place of operation, or something like that. A key employee, again remember, is a salaried FMLA-eligible employee who’s among the highest paid 10% of employees, and then they have to be within 75 miles of that work site. So I would just say, if you want additional information on the key employee FMLA provision, don’t hesitate to dig more into that, we have more information on our platform, so definitely make sure that you’re familiar with all of the key pieces around that.
Ooh, this is an interesting one. “Does FMLA apply to an employee to care for a partner, not a spouse?” Really good question. No. Employees can take FMLA leave due to a serious health condition of, remember, these specific family members, so it does include spouse, parent, son, or daughter, and spouse does mean a husband or wife as defined or recognized in the state where the individual was married. Spouse also includes a husband or a wife in a marriage that was validly entered into outside the US, if the marriage could have been entered into at least one state. So I’m sure that comes up occasionally, that is a really good question. And yeah, just remember, FMLA has very strict guardrails, and so it does call out the specific family members that are included in that.
Okay. I ran a minute over, but you all had some really good questions here. That’s all the time we have. I really appreciate you being here and really engaging with this. As a final reminder, we will be emailing you a PDF of the slides and the recording in about 24 hours to the email address you signed up with. So thank you so much, everyone, and have a great rest of your day.