ADA/FMLA/WORKERS’ COMPENSATION: Unscrambling the Alphabet Soup June 25, 2000 Jacqueline Conforti Barnett State System of Higher Education 2986 North Second Street Harrisburg, PA 17110 Phone: (717) 720-4070 Facsimile: (717) 720-4213 E-mail: [email protected]

ADA/FMLA AT A GLANCE

ISSUE CITATION

AMERICANS WITH DISABILITIES ACT (ADA) 42 U.S.C. §12101 et seq.

FAMILY MEDICAL LEAVE ACT (FMLA) 29 U.S.C. §2601 et seq.

DATE OF EFFECT

July 26, 1992

August 5, 1993

APPLICABILITY

Employers with 15 or more employees for each working day in each of twenty or more calendar weeks. 42 U.S.C. §1211(5)(A).

Employers with 50 or more employees for each working day in each of twenty or more calendar weeks. 29 U.S.C. §2611(4)(A)

BASIS OF INVOKING ACT

Must be a qualified individual with a disability. Brief and transitory illnesses or injuries that have no permanent or long-term effects on an individual’s life activities are not disabilities for purposes of the Act. To be a qualified individual within the meaning of the Act, “a person must be able with or without reasonable accommodation to perform the essential functions of

Must be a serious health condition making the employee unable to perform any essential function of the job. A serious health condition is an illness, injury or impairment or mental condition that involves inpatient care or continuing treatment by a health care provider. 29 U.S.C. § 2611(11).

ADA/FMLA AT A GLANCE

Page 2 the job.” §1211(8).

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U.S.C.

NECESSARY MEDICAL STATUS

Employee must suffer from a disability. The term disability encompasses one of three situations where a person has: 1. a physical or mental impairment that substantially limits one or more of the major life activities of an individual; 2. a record of such an impairment; or 3. being regarded as having such impairment by a perception even though no disability may actually exist. 42 U.S.C. §12102(2).

Employee may take leave for one or more of the following reasons: 1. The birth of a child, and to care for the newborn child; 2. The placement of a child through adoption or foster care, and to care for the child; 3. To care for the employees spouse, son, daughter, or parent with a serious health condition; and 4. Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job. 29 U.S.C. §2612(a)(1).

PROVIDING REASONABLE ACCOMMODATION

If a person is a qualified individual with a disability, the employer is obligated to provide a reasonable accommodation. In a policy issued by the EEOC, three categories of reasonable accommodations were identified:

Reasonable accommodation is irrelevant to FMLA. If the employee meets the requisite work hours and meets the criteria to be entitled to the leave, the leave must be granted.

1. Modifications of the job application process that enables a qualified applicant with a disability to be considered for the position such qualified applicant desires; 2. Modifications of the work

ADA/FMLA AT A GLANCE

Page 3 environment or the manner in which a job is performed that enable a qualified person to perform the essential functions of that position; and 3. Modifications that enable disabled employees to enjoy the privileges and benefits of employment on an equal basis as other employees similarly situated. 29 C.F.R. §16302(o)(1). An employer has no obligation to eliminate an essential function of the job. 42 U.S.C. §12113

FORM OF REQUEST TO EMPLOYER

It is the responsibility of the individual desiring the accommodation, or other representative, to make the request for accommodation and such requests do not have to be in writing. At that time, the employer should closely scrutinize the claimed disability in question in order to assess if there is entitlement to accommodation.

Under FMLA, the information to be submitted to employer relates to the particular serious health condition as defined within the statute. In cases not involving birth or adoption, information to employer is to include date condition commenced, duration, and medical facts, among other items. 29 U.S.C. §2613. In certain foreseeable instances, 30 days notice must be given. 29 U.S.C. §2612(e)

DEFENSE OF UNDUE HARDSHIP AS BASIS FOR NONCOMPLIANCE

There is no requirement that There is no undue hardship the employer must give the defense under the FMLA. accommodation requested by the employee, so long as the employer’s chosen accommodation is effective. This means that the reasonable accommodation

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Page 4 offered enables the person to perform the essential functions of the position and provides the individual an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy. A reasonable accommodation may not create an undue hardship that would impose a significant difficulty or expense upon the employer. 42 U.S.C. § 1211(10)(A) and (B). This not only encompasses financial hardship, but to requests that are unduly extensive, substantial, or disruptive or would fundamentally alter the nature or operation of the business.

CONTINUATION OF MEDICAL INSURANCE BENEFITS

Employer must continue health insurance coverage if employer provides coverage for similarly situated employees in leave or parttime status or risk a claim of discrimination. 42 U.S.C. §12112(a).

An employer is obligated to keep the employee’s existing level of coverage under a group health plan. 29 U.S.C. §2614 (c ).

DOCUMENTATION REQUIRED OF MEDICAL ISSUE

It is acceptable to request documentation in regards to the disability but the employer’s request must also be reasonable. The documentation need only establish that an individual has an ADA disability. It may also include a

Under the FMLA, an employer is entitled to request information relating to the serious health condition in question, which necessitates the need for leave. 29 U.S.C. § 2613. See information under “Form of Request to

ADA/FMLA AT A GLANCE

Page 5 statement as to functional Employer” above. limitations as well. However, if the disability is obvious or documentation is complete, the employer cannot ask for further documentation.

PERMISSIBILITY OF INDEPENDENT MEDICAL EXAM

If the employee provides insufficient documentation from a treating physician or health care provider to substantiate the disability and need for accommodation, the employer can request a medical exam of a health care provider of employer’s choice as opposed to denying the claim. However, the employee should first be given the opportunity to supplement the request by employer for more specific information.

A second opinion can also be requested by employer. 29 U.S.C. §2613(c). This includes even subsequent certifications. 29 U.S.C. §(e).

USE OF STATUTE FOR CARE OF FAMILY MEMBER

Reasonable accommodation does not require an employee time off to care for a family member with a disability. But, an employer may not engage in discriminatory behavior against an employee who has a disabled family member.

An employee may take leave to care for a son, daughter, parent or spouse with a serious medical condition. 29 U.S.C. § 825.112 (a)(3)

USE OF INTERMITTENT LEAVE

An employer must allow a disabled employee to work a modified or part-time schedule as a reasonable accommodation provided that it does not create an

Employee may use leave intermittently or on a part – time basis, when medical necessity dictates that this be done until the equivalent of twelve work weeks have

ADA/FMLA AT A GLANCE

JOB POSITION SECURITY

Page 6 undue hardship such as to significantly disrupt operations or if time-frame is an essential function of the job to be performed. Employer can suggest an alternative, effective accommodation.

been exhausted. In foreseeable cases, the employer may require a temporary transfer. 29 U.S.C. §2612(b)(1), 2612(b)(2).

An employee is entitled to return to the same job unless the employer demonstrates that holding the job open would be an undue hardship.

At the end of leave, an employer is required to take an employee back into the same or an equivalent job unless the employee cannot perform an essential function of the same or equivalent position because of a physical or mental condition. If so, reinstatement is not obligated on the part of the employer. 29 U.S.C. § 2614(a)(1).

In cases of hardship where a position cannot be held until the employee’s return, the employer must consider whether there is a vacant position of an equivalent nature to which the employee is qualified and can be reassigned to. ENFORCEMENT OF STATUTE

The EEOC is responsible Department of for enforcement of Title 1 of enforces the FMLA. the ADA.

*Always consult your state statutes which may set stricter obligations.

Labor