Americans with Disabilities Act
Tuesday, October 30th, 2007posted by MaryMargaret Lytle
The U.S. Equal Employment Opportunity Commission
The Family and Medical Leave Act,
the Americans with Disabilities Act, and
Title VII of the Civil Rights Act of 1964
This fact sheet was prepared by the Equal Employment Opportunity
Commission's (EEOC) Office of Legal Counsel. It is intended to
provide technical assistance on some common questions that have
arisen about the Americans with Disabilities Act of 1990 (ADA)
and Title VII of the Civil Rights Act of 1964 (Title VII) when
the Family and Medical Leave Act of 1993 (FMLA) also applies.
Introduction
Background
1. Q: What is the relationship between requirements of the
FMLA,1 the ADA,2 and Title VII3?
A: The FMLA and the ADA both require a covered employer
to grant medical leave to an employee in certain
circumstances.4 The FMLA and Title VII both have
requirements governing leave for pregnancy and
pregnancy-related conditions.
In addition, under Title VII, employers must not
discriminate on the basis of race, color, religion,
sex, or national origin when they provide family or
medical leave.
2. Q: Who enforces the FMLA?
A: The Department of Labor enforces the FMLA. The EEOC
has no enforcement responsibility for the FMLA.
3. Q: When did the FMLA go into effect?
A: The FMLA went into effect on August 5, 1993.5 The
FMLA final rule became effective on April 6, 1995.6
Basic FMLA Requirements
4. Q: What leave is an employee entitled to under the FMLA?
A: Under the FMLA, an "eligible"7 employee may take up
to 12 workweeks of leave during any 12-month period
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 with the employee
through adoption or foster care, and to care
for the child;8
(3) To care for the employee's spouse, son,
daughter, or parent with a serious health
condition; and
(4) Because a serious health condition makes the
employee unable to perform one or more of the
essential functions of his or her job.9
5. Q: What other rights do "eligible" employees have in
conjunction with FMLA leave?
A: During FMLA leave, an employer must maintain the
employee's existing level of coverage under a group
health plan.10 At the end of FMLA leave, an employer
must take an employee back into the same or an
equivalent job.11
When FMLA, ADA and Title VII Coverage Overlap
6. Q: What employers are covered by the FMLA, the ADA and
Title VII?
A: The FMLA covers private employers with 50 or more
employees.12 The ADA and Title VII cover private
employers with 15 or more employees.13 Thus, only
those private employers with 50 or more employees are
covered concurrently by the FMLA, the ADA and Title
VII.14
State and local government employers are covered by
the ADA and the FMLA, regardless of the number of
employees.15 State and local government employers
are covered by Title VII, however, only if they have
15 or more employees.16
7. Q: Are all employees who are protected by Title VII or
the ADA also entitled to leave under the FMLA?
A: No. Employees protected by Title VII or the ADA must
be independently "eligible" for FMLA leave.
"Eligibility" for FMLA leave depends on several
factors, for example, length of service.17 In
addition, an individual must be employed by an FMLA-
covered employer with 50 or more employees to obtain
FMLA leave. See Question 6.
The ADA and the FMLA
FMLA "serious health condition" and ADA "disability"
8. Q: What is a "serious health condition" under the FMLA?
A: An FMLA "serious health condition" is "an illness,
injury, impairment, or physical or mental condition
that involves . . . [i]npatient care . . . or
[c]ontinuing treatment by a health care provider."18
9. Q: Is an FMLA "serious health condition" the same as an
ADA "disability"?
A: No. An FMLA "serious health condition" is not
necessarily an ADA "disability." An ADA "disability"
is an impairment that substantially limits one or
more major life activities, a record of such an
impairment, or being regarded as having such an
impairment.
Some FMLA "serious health conditions" may be ADA
disabilities, for example, most cancers and serious
strokes. Other "serious health conditions" may not
be ADA disabilities, for example, pregnancy or a
routine broken leg or hernia. This is because the
condition is not an impairment (e.g., pregnancy), or
because the impairment is not substantially limiting
(e.g., a routine broken leg or hernia).
In addition, the fact that an individual has a record
of a "serious health condition" does not necessarily
mean that s/he has a record of an ADA disability.
Under the ADA, an individual must have a record of a
substantially limiting impairment in order to be
covered.
Finally, just because someone has a "serious health
condition" also does not mean that the employer
regards him/her as having an ADA disability. To
satisfy this prong of the ADA definition of
"disability," the employer must treat the individual
as having an impairment that substantially limits one
or more major life activities.19
To determine if an individual has an ADA disability,
all pertinent evidence, including any information
about whether the individual has or had a "serious
health condition," should be considered. Under the
FMLA regulations, employers must allow EEOC
investigators to review pertinent FMLA medical
certifications and recertifications, and other
relevant materials, upon request.20
Medical Certifications, Inquiries and Confidentiality
10. Q: Is there a conflict between the FMLA provision
allowing employers to ask for certification that an
employee has a serious health condition and ADA
restrictions on disability-related inquiries of
employees?
A: No. When an employee requests leave under the FMLA
for a serious health condition, employers will not
violate the ADA by asking for the information
specified in the FMLA certification form. The FMLA
form only requests information relating to the
particular serious health condition, as defined in
the FMLA, for which the employee is seeking leave.
An employer is entitled to know why an employee, who
otherwise should be at work, is requesting time off
under the FMLA. If the inquiries are strictly
limited in this fashion, they would be "job-related
and consistent with business necessity" under the
ADA.21
11. Q: May an employer keep a single confidential medical
file for each employee, separate from the usual
personnel file, for medical documentation under both
the ADA and the FMLA?
A: Yes. An employer may keep a single confidential
medical file, separate from the usual personnel file,
containing both FMLA and ADA medical information if
the employer follows the ADA confidentiality
standards. This includes following the ADA
interpretations of those confidentiality exceptions
that are set forth in both the ADA and the FMLA
regulations.22 For example, employers may not give
supervisors and managers unlimited access to the
medical files. However, employers may give
supervisors and managers information concerning
necessary work restrictions and accommodations.23
Comparison of ADA and FMLA Leave
12. Q: Does the FMLA's limit of 12 workweeks of leave in a
12- month period mean that the ADA also limits
employees to 12 weeks of leave per year?
A: No. The FMLA does not mean that more than 12 weeks
of unpaid leave automatically imposes an undue
hardship for purposes of the ADA. An otherwise
qualified individual with a disability is entitled to
more than 12 weeks of unpaid leave as a reasonable
accommodation if the additional leave would not
impose an undue hardship on the operation of the
employer's business. To evaluate whether additional
leave would impose an undue hardship, the employer
may consider the impact on its operations caused by
the employee's initial 12-week absence, along with
the undue hardship factors specified in the ADA. See
29 C.F.R. § 1630.2(p).
13. Q: How do the ADA and the FMLA requirements compare
regarding intermittent or occasional leave?
A: Under the ADA, a qualified individual with a
disability may work part-time in his/her current
position, or occasionally take time off, as a
reasonable accommodation if it would not impose an
undue hardship on the employer. If (or when) reduced
hours create an undue hardship in the current
position, the employer must see if there is a vacant,
equivalent position for which the employee is
qualified and to which the employee can be reassigned
without undue hardship while working a reduced
schedule. If an equivalent position is not
available, the employer must look for a vacant
position at a lower level for which the employee is
qualified. Continued accommodation is not required
if a vacant position at a lower level is also
unavailable.24
The ADA does not prohibit an employer and an employee
from agreeing on another mutually acceptable
accommodation. For example, an employer and employee
may agree to a transfer, on either a temporary or a
permanent basis, if both parties believe that such a
transfer is preferable to accommodating the employee
in his/her current position.
Under the FMLA, an "eligible" employee may take leave
intermittently or on a part-time basis25 for his or
her own "serious health condition" when medically
necessary for treatment or recovery, until s/he has
used up the equivalent of 12 workweeks in a 12-month
period.26 When such leave is foreseeable based on
planned medical treatment, an employer may require
the employee to temporarily transfer (for the
duration of the leave) to an available alternative
position for which the employee is qualified and
which better suits his/her reduced hours.27
14. Q: What are employees' reinstatement rights under the
ADA and the FMLA?
A: Under the ADA, the employee is entitled to return to
the same job unless the employer demonstrates that
holding the job open would impose an undue hardship.
In some instances, an employee may request more leave under
the ADA even after the employer has communicated that it
cannot hold the employee's job open any longer (i.e., there
is undue hardship). In this situation, the ADA-covered
employer must see if it has a vacant, equivalent position
for which the employee is qualified and to which the
employee can be reassigned without undue hardship to
continue his/her leave. If an equivalent position is not
available, the employer must look for a vacant position at
a lower level. Continued accommodation is not required if
a vacant position at a lower level is also unavailable.28
In other instances, an employer may hold the original
position open, and the employee may want to return to work,
but may be unable to perform an essential function of the
original position even with reasonable accommodation.
Under the ADA, the employer must then consider
reassignment, first to a vacant equivalent position for
which the individual is qualified and, if one is
unavailable, to a vacant position at a lower level.
Further accommodation is not required if a vacant position
at a lower level is also unavailable.
Under the FMLA, an employee is entitled to return to the
same position or to an equivalent position.29 However, if
an employee is unable to perform an essential function of
the same or equivalent position because of a physical or
mental condition, the FMLA does not require the employer to
reinstate the employee into another job.30
15. Q: Do the ADA and the FMLA require an employer to continue an
employee's health insurance coverage during medical leave?
A: Under the ADA, an employer must continue health insurance
coverage for an employee taking leave or working part- time
only if the employer also provides coverage for other
employees in the same leave or part-time status. The
coverage must be on the same terms normally provided to
those in the same leave or part-time status.
Under the FMLA, an employer always must maintain the
employee's existing level of coverage (including family or
dependent coverage) under a group health plan during the
period of FMLA leave, provided the employee pays his or her
share of the premiums.31 An employer may not discriminate
against an employee using FMLA leave, and therefore must
also provide such an employee with the same benefits (e.g.,
life or disability insurance) normally provided to an
employee in the same leave or part-time status.32
ADA Compliance When the FMLA Also Applies
16. Q: If an individual requests time off for medical treatment,
should the employer treat this as a request for FMLA leave
and ADA reasonable accommodation?
A: If an employee requests time off for a reason related or
possibly related to a disability (e.g., "I need six weeks
off to get treatment for a back problem"), the employer
should consider this a request for ADA reasonable
accommodation as well as FMLA leave. The employer may
require FMLA certification33 and may make additional
disability-related inquiries if necessary to decide whether
the employee is entitled to reasonable accommodation
because s/he also has a covered disability. However, if
the employee states that s/he only wants to invoke rights
under the FMLA, the employer should not make additional
inquiries related to ADA coverage.
17. Q: When both the ADA and the FMLA apply, how should the
employer determine which terms and conditions govern the
employee's initial 12 weeks of medical leave?
A: Under the FMLA rule, an employer must provide leave under
whichever statutory provision provides the greater rights
to employees.34 For examples of how this principle is
applied, see the FMLA rule at §§ 825.702(b)-(e).
18. Q: As an alternative to a leave of absence, may an employer
offer an effective reasonable accommodation that will
enable an employee to continue working?
A: An employer may offer an employee a reasonable
accommodation other than the leave s/he requested under the
ADA, as long as it is effective.35 For example, an
employer may offer an assistive device, an opportunity to
work reduced hours in the employee's current job, or a
temporary assignment to another job, if these are effective
accommodations.
However, if the individual is "eligible" for leave under
the FMLA and has a serious health condition that prevents
him/her from performing an essential job function, s/he has
the right to take a leave of absence of up to 12 workweeks
in 12 months, even if s/he could continue working with an
effective reasonable accommodation.36 While the FMLA does
not prevent an employee from accepting an alternative to
leave, the acceptance must be voluntary and uncoerced.37
The ADA and Family Leave
19. Q: Does the ADA require an employer to give an employee
time off to care for a spouse, son, daughter, parent or
other individual with a disability?
A: The ADA's reasonable accommodation obligation does not
require a covered employer to give an employee time off to
care for a spouse, son, daughter, parent or other
individual with a disability with whom the employee has a
relationship.38 However, an employer would be required to
provide leave on the same terms as it normally provides
leave to employees who need to care for someone who is
ill.39
Title VI