Top FAQs on the intersection of the FMLA and ADA

Published: August 13, 2024 | by Helena Oroz, JD, Senior Legal Editor at Brightmine

Complying with the FMLA and ADA on their own is challenging. When they intersect, the challenge becomes even more complicated for even the most experienced HR professionals. To help you navigate these laws, we’re answering seven frequently asked questions on whether and when the ADA and FMLA apply and how they interact.

1. What’s the difference between the FMLA and ADA?

Both the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) provide protections to employees with medical conditions. While there are some similarities, these two laws are quite different in terms of employee rights and employer obligations.

Rights

The FMLA requires covered employers to provide employees with job-protected unpaid leave for qualified medical and family reasons. This includes time off to care for the employee’s or a family member’s serious health condition.

The ADA, on the other hand, prohibits workplace discrimination based on disability. It also requires employers to provide individuals with disabilities with reasonable accommodations, which may include time off.

Application

The FMLA applies to employers with 50 or more employees. The ADA applies to employers with 15 or more employees. Thus, employers with 50 or more employees must comply with both laws, and sometimes both laws apply simultaneously.

Leave

Under the FMLA, eligible employees can take up to 12 weeks of unpaid leave in a single 12-month period (or 26 weeks for military caregiver leave). Under the ADA, if leave is a reasonable accommodation, there isn’t a specific or maximum amount of leave required. The ADA requires an employer to review each employee’s individual circumstances. However, an indefinite leave of absence is generally considered unreasonable under the ADA.

2. When is an employee eligible for FMLA and ADA protections?

An employee is eligible for FMLA leave if they:

• Work at a location with at least 50 employees within a 75-mile radius,
• Have worked at least 12 months for a covered employer (which do not need to be consecutive), and
• Have worked 1,250 hours in the 12 months immediately preceding the leave.

However, an employee can request FMLA leave before they are eligible for leave. For example, if an employee has worked for a covered employer for 11 months, they can request FMLA leave that begins two months later.

The ADA does not have location, length-of-service or hours-worked eligibility requirements. The ADA protects all applicants and employees of a covered employer. It prohibits discrimination in recruiting, hiring and all aspects of employment, and it requires an employer to provide reasonable accommodations to both prospective and current employees with disabilities.

3. What medical conditions are generally covered under the FMLA and ADA?

Neither the FMLA nor the ADA includes a list of covered medical conditions. Rather, each law has its own criteria and coverage analysis. 

Under the ADA, a person with a disability is someone who:

• Has a physical or mental impairment that substantially limits a major life activity,
• Has a record of such impairment, or
• Is perceived by others (regarded as) having such an impairment.

The ADA rules include examples of conditions that will almost always be considered disabilities under the law (like cancer and diabetes), but no complete list of covered disabilities exists.

Leave under the FMLA is available for certain qualifying reasons, including an employee’s or their family member’s serious health condition, which involves inpatient care or continuing treatment by a health care provider.

Conditions that commonly qualify for FMLA coverage are:

• Conditions that require an overnight stay in a hospital,
• Conditions that cause a person to become incapacitated for more than three consecutive days and require ongoing medical treatment.
• Chronic conditions causing occasional incapacity and at least twice-yearly medical treatment, and
• Pregnancy, including prenatal appointments, incapacity, and medically required bed rest

4. When an employee exhausts their FMLA leave but is unable to return to work, what are an employer’s ADA obligations?

An employee with a serious health condition who exhausts their 12 weeks of FMLA leave may need additional time off if they can’t yet return to work due to their medical condition. An employee in that situation may have the right to additional time off under the ADA.

An employer should engage in the interactive process with the employee to determine whether additional time off is reasonable under the circumstances and will address the employee’s limitation (i.e., allow them to eventually return to work).

The Equal Employment Opportunity Commission (EEOC) has made it clear that policies that lead to the termination of employees immediately upon the expiration of FMLA leave conflict with the ADA.

5. Can an employer follow up on an employee’s medical certification?

The FMLA allows employers to request information from employees to support certain FMLA-qualifying reasons for leave. The FMLA has specific requirements for the various types of certifications allowed. These requirements address:

• The content of each certification,
• The timing of when the employer must provide it to employees, and
• When employees must return the completed form.

The Department of Labor, Wage and Hour Division makes model forms available for employer use, including certifications for an employee’s own serious health condition or that of a family member (WH-380-E and WH-380-F).

The FMLA permits an employer to contact the employee’s health care provider to authenticate or clarify a certification. However, the employee’s direct supervisor cannot be the individual to contact the health care provider. Instead, an employer must use one of the following individuals to contact the health care provider:

• A management official,
• A leave administrator,
• A human resources professional, or
• A third-party health care provider.

In addition, the FMLA allows the employer to request second and third opinions, at its expense, under certain circumstances.

The ADA does not have concrete requirements like the FMLA. An employer may seek medical documentation to support a request for accommodation under the ADA, but the information requested must be directly connected to the employee’s impairment. Under the ADA, employers can’t subject the employee to medical exams that have nothing to do with the employee’s need for accommodation.

6. Can an employer request a fitness-for-duty certification when an employee wants to return from a leave of absence?

Under the ADA, a request for fitness-for-duty certification must be job-related and consistent with business necessity.

For example, an employer may ask returning employees to provide such certification if it reasonably believes that the employee’s ability to perform essential job functions is impaired or that the employee poses a direct threat to themselves or others. The fitness-for-duty certification, like other medical certifications, must be limited in scope.

The FMLA allows an employer to require employees to submit a fitness-for-duty certification when they take leave for their own serious health condition, at the employee’s expense. However, the employer must:

• Notify employees of the fitness-for-duty certification requirement in the Designation Notice, and include a job description or list of essential functions if the employer requires the certification to specifically address the employee’s ability to perform essential job functions,
• Seek certification only with regard to the particular health condition that caused the employee’s need for FMLA leave, and
• Apply its fitness-for-duty certification requirements to all similarly situated employees (e.g., those with the same occupation or the same serious health condition).

7. Can an employee with a substance abuse problem take a protected leave of absence to go to rehab?

The ADA does not protect illegal drug use. It only protects recovering drug addicts who:

• Are participating in a supervised rehabilitation program, or
• Have successfully completed rehab and are no longer engaging in the illegal use of drugs.

The ADA treats alcoholism differently than drug addiction. For example, the law covers both current and past alcohol addiction. An employer can therefore terminate an employee with alcoholism who drinks during work hours. However, an employer may not terminate an employee solely because they requested time off for treatment.

Substance abuse may be a serious health condition if it meets FMLA requirements. Qualified individuals are eligible for FMLA leave for substance abuse treatment as long as it is administered by a healthcare provider or a healthcare service provider referred by a healthcare provider. Employees who are absent due to their use (as opposed to treatment) won’t qualify for FMLA leave.

Learn more about ADA and FMLA requirements

Compliance with both the ADA and FMLA can be a daunting task. Especially when they intersect. Our resources can help. Access in-depth coverage of these and other employment laws through the Brightmine HR & Compliance Center, formerly XpertHR tools and resources.