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The Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) both have leave mandates, but they are as different from each other as cats are from dogs, according to Michael Shetterly and Penny Wofford, attorneys with Ogletree Deakins in Greenville, S.C.
The FMLA is like a cat. It owns you and doesn't care what you think; its requirements are inflexible, and it does not have the ADA's undue hardship provision. The ADA is like a dog chasing tennis balls—there are too many things up in the air, Shetterly joked. He and Wofford were speaking at a SHRM 2017 Annual Conference & Exposition session.
When someone has a serious health condition under the FMLA, he or she also will have an ADA disability if the person's impairment substantially limits a major life activity, which range widely from walking, lifting and talking to thinking, eating and breathing, for example.
Under the FMLA, the amount of leave is exact—12 weeks total on an intermittent basis or in a block within a 12-month period, Wofford noted.
But under the ADA, it's not exact at all, Shetterly said. Instead, the amount of ADA leave required will depend on the facts and circumstances and can differ for every employee, he noted.
The FMLA can run at the same time as most types of leaves other than the ADA, Wofford observed. That includes vacation, disability leave and sick leave.
But under the ADA, every other type of leave must be exhausted first and then it runs by itself, Shetterly noted.
[SHRM members-only toolkit: Coordinating Leaves of Absence]
Under ADA, finite leave policies are unlawful, Wofford cautioned. And yet she still sees policies that state that the employer has a maximum amount of leave it will grant, such as six months. She recommends removing the language altogether. But if an employer decides to keep it, at least put in qualifying language noting that exceptions can be made to the rule under the ADA.
The FMLA has eligibility criteria—employees must have worked a year and for 1,250 hours in a 12-month period to be covered, Wofford noted.
But under the ADA, every individual is covered, even as an applicant, and on day one, Shetterly observed. Even part-timers are protected by the ADA.
Under the FMLA, there are very precise questions that can be asked on the medical certification form, Wofford pointed out.
Don't use FMLA certification for ADA medical documentation, though, Shetterly said. Medical questions under the ADA are prohibited with certain exceptions, such as questions seeking to document that someone has an ADA disability or to help an employer better understand how it can reasonably accommodate someone.
To get better information, send the worker's doctor a job description along with ADA certification, Wofford said. Make sure the job description reflects what the job really entails. Some think a doctor will just say whatever the employee wants the doctor to say, but that's not always true, particularly if a job description is sent along with the ADA certification, she added.
Shetterly recommended employers go one step further and send a questionnaire with the ADA certification, asking what the employee can and can't do. This is part of the interactive process for identifying a reasonable accommodation, he said. If it's truly interactive, employers get to participate and not be dictated to, he stated.
Talk with supervisors about what the essential job functions are and what can or can't be waived, such as working overtime or rotating shifts, he recommended. If a duty can't be set aside, make sure it's in the job description.
Also, be sure that if a supervisor says something is an essential function, there aren't other employees who are allowed to not perform those tasks. How can you argue a task is essential, Wofford asked, if others don't do it?
Finally, if an ADA leave of absence isn't going to make the person well enough to return to his or her original job, don't forget that an employer must consider reassignment under the ADA as a last-resort accommodation.
Look at the jobs that are vacant at that point and ask whether the individual can perform all of the essential functions with or without a reasonable accommodation, Shetterly noted.
"This is not shoe shopping here, where you try a bunch of different shoes," he said. The employer instead moves the person into as good a position as it can. If the employee rejects the position, "then you're done," he noted.
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