The HR profession is full of acronyms. Grab any three or four letters from the alphabet and throw them together and there’s probably a corresponding law for it. But there are two acronyms in particular that create a lot of anxiety for HR professionals: FMLA and ADA.
Intermittent Family and Medical Leave Act (FMLA) leave has rapidly become one of the most common sources of heartburn for employers. Sprinkle in some of the Americans with Disabilities Act’s (ADA’s) ambiguous wording, and the broader definition of “disability” included in the ADA Amendments Act of 2008, and you’ve got all the ingredients for some potentially precarious employment situations.
According to the National Bureau of Economic Research, “since July 1992, employers have paid more than $174 million in EEOC [Equal Employment Opportunity Commission] settlements over ADA complaints, not counting administrative costs and legal fees,” and there is still much misunderstanding about how to administer these kinds of leaves.
According to SHRM Online legal writer and editor Allen Smith in When Is Enough ADA Leave Enough?, “Few areas of employment law cause as much frustration for employers as the lack of a definitive answer to the question of how much leave beyond the Family and Medical Leave Act’s (FMLA’s) 12 weeks and state-law-mandated leave must be provided under the Americans with Disabilities Act (ADA).”
And other questions often arise, such as:
- When is an employer required to begin a discussion about accommodations?
- How do you know if an employee is entitled to an accommodation?
- What if the accommodation violates company rules, or costs the company money?
- Can an employer force the employee to use paid time off, first?
And what happens when these two acronyms begin to overlap? Smith cites pregnancy as an example in his article “Pregnancy Can Produce Variety of ADA, FMLA Claims”:
“So what if the pregnant woman runs through all of her FMLA leave before she has recovered from pregnancy-related conditions? What if she hasn’t worked for a year or the requisite 1,250 hours within a year? What if she doesn’t work at a location with 50 or more employees? She still might be entitled to leave as a reasonable accommodation under the ADA if she has pregnancy-related impairments that rise to the level of a disability. Now a wide range of pregnancy-related physical impairments may qualify as covered disabilities, since the bar for ADA disabilities has been lowered. Such ADA-qualifying disabilities might include high blood pressure, severe morning sickness, gestational diabetes, pre-eclampsia, postpartum depression and uterine fibroids causing risk of premature labor.”
When an employee indicates in any way that he or she can’t perform or complete his or her job, this should be a red flag to supervisors, and documentation of the issue should ensue. Information, education and supervisor training—as well as updating job descriptions to include essential functions—can help employers care for their employees while avoiding costly lawsuits and mistakes.
Please join @shrmnextchat at 3 p.m. ET on August 19 for #Nextchat with special guest Allen Smith (@SHRMLegalEditor). We’ll discuss best practices that will help employers effectively administer leave while reducing liability.
Q1. What FMLA and ADA issues do employers typically struggle with the most?
Q2. What are the signs that an employee is abusing FMLA leave?
Q3. What are common ADA mistakes employers make?
Q4. What are common FMLA mistakes employers make?
Q5. How can an employer determine if an accommodation would impose an undue hardship on its business?
Q6. What factors help an employer determine when to deny a leave request?
Q7. How does an employer determine how long an employee’s leave should be?
Q8. How can employers improve their internal practices to avoid ADA-related complaints and legal action?