FMLA or ADA? Or Both? Neither?

FMLA (Family Medical Leave Act) covers leave for employees with medical conditions or medical conditions of an immediate family member. This federal leave provides the employee with a guarantee of their job when they return. In addition, if they have benefits (health, dental, or PTO), all benefits must be maintained while the leave takes place. ADA provides a change to job duties, change in schedule, position change, and even job leave if necessary. ADA requires an interactive discussion to come to the best possible temporary solution.

When an employee is sick, injured themselves, or have a ill or injured family member – what do you do? Can you legally get rid of your employee if they can’t return to work? The answer is – maybe. Possibly. The answer will depend on a multitude of factors…let’s examine a few of them here.

  1. The size of your company – For the ADA to take effect, you need to have 15 or more employees. For FMLA, you need to have 50 or more FTE’s (full time employee’s) within a 75 mile radius. FMLA is also extended to all government employees; local, state, and federal regardless of size.
  2. Length of Service – For ADA, there is no length of service that needs to be worked by the employee. For FMLA, employee must have worked at least 1,250 hours and have worked at the company for at least 12 months.
  3. Amount of Leave – With the ADA, there is no exact set amount of work-leave that you are required to give, and in fact, an ADA request might not include time off. The ADA simply says that that an employer must grant a reasonable amount depending on the job, the disability, and the hardship to the employer. With FMLA, the maximum is 12 weeks that can be used consecutively or on an intermitted basis (which is the HARDEST for HR to manage).
  4. What Qualifies? – For ADA, employers can ask for medical documentation and have an “interactive discussion” with the employee and their medical professionals to come to a decision that will benefit both parties. For FMLA, paperwork needs to be filled out by both the employer, employee, and the medical provider. The medical provider will verify what kind of leave is needed, how long the leave will be and any other important information in regards to the leave. This might include shortened shifts, shorter workweeks, or job restrictions (sitting, standing, etc…).

Does this seem overwhelming? The answer should be yes. And at times, confusing. FMLA leave can turn into ADA if it’s exhausted, and more time is needed. Documentation is key for any leave situation, and most likely, some HR or legal counsel. In order to avoid these headaches, a well educated HR professional (*hint, hint, me…) can take care of these complicated situations for you. Give Solution Services a call today for a no-pressure informative meeting and see how we can help you. FMLA and ADA can put a company at risk if not handled correctly. Let us do the hard work for you.