Current through December 12, 2024
(a) Nothing in FMLA
modifies or affects any Federal or State law prohibiting discrimination on the
basis of race, religion, color, national origin, sex, age, or disability, such
as under Title VII of the federal Civil Rights Act of 1964, as amended by the
federal Pregnancy Discrimination Act of 1978, or any protected class under
CFEPA.
(b) If an employee is a
qualified individual with a disability within the meaning of the ADA or an
applicable state law, the employer must make reasonable accommodations, barring
undue hardship, in accordance with the ADA or applicable state law. At the same
time, the employer must afford an employee his or her FMLA rights. ADA's
"disability" and FMLA's "serious health condition" are different concepts, and
must be analyzed separately. FMLA entitles eligible employees to twelve (12)
weeks of leave in any twelve (12)-month period due to their own serious health
condition, whereas the ADA allows an indeterminate amount of leave, barring
undue hardship, as a reasonable accommodation. FMLA requires employers to
maintain employees' group health plan coverage during FMLA leave on the same
conditions as coverage would have been provided if the employee had been
continuously employed during the leave period, whereas ADA does not require
maintenance of health insurance unless other employees receive health insurance
during leave under the same circumstances.
(c)
(1) A
reasonable accommodation under the ADA or applicable state law might be
accomplished by providing an individual with a disability with a part-time job
with no health benefits, assuming the employer did not ordinarily provide
health insurance for part-time employees. However, FMLA would permit an
employee to work a reduced leave schedule until the equivalent of twelve (12)
workweeks of leave were used, with group health benefits maintained during this
period. FMLA permits an employer to temporarily transfer an employee who is
taking leave intermittently or on a reduced leave schedule for planned medical
treatment to an alternative position, whereas the ADA allows an accommodation
of reassignment to an equivalent, vacant position only if the employee cannot
perform the essential functions of the employee's present position and an
accommodation is not possible in the employee's present position, or an
accommodation in the employee's present position would cause an undue hardship.
The examples in the following subsections of this section demonstrate how the
two laws would interact with respect to a qualified individual with a
disability.
(2) A qualified
individual with a disability who is also an "eligible employee" entitled to
FMLA leave requests ten (10) weeks of medical leave as a reasonable
accommodation, which the employer grants because it is not an undue hardship.
The employer advises the employee that the ten (10) weeks of leave is also
being designated as FMLA leave and will count towards the employee's FMLA leave
entitlement. This designation does not prevent the parties from also treating
the leave as a reasonable accommodation and reinstating the employee into the
same job, as required by the ADA, rather than an equivalent position under
FMLA, if that is the greater right available to the employee. At the same time,
the employee would be entitled under FMLA to have the employer maintain group
health plan coverage during the leave, as that requirement provides the greater
right to the employee.
(3) If the
same employee needed to work part-time on a reduced leave schedule after
returning to his or her same job, the employee would still be entitled under
FMLA to have group health plan coverage maintained for the remainder of the
two(2)-week equivalent of FMLA leave entitlement, notwithstanding an employer
policy that part-time employees do not receive health insurance. This employee
would be entitled under the ADA to reasonable accommodations to enable the
employee to perform the essential functions of the part-time position. In
addition, because the employee is working a part-time schedule as a reasonable
accommodation, the FMLA's provision for temporary assignment to a different
alternative position would not apply. Once the employee has exhausted his or
her remaining FMLA leave entitlement while working the reduced (part-time)
schedule, if the employee is a qualified individual with a disability, and if
the employee is unable to return to the same full-time position at that time,
the employee might continue to work part-time as a reasonable accommodation,
barring undue hardship; the employee would then be entitled to only those
employment benefits ordinarily provided by the employer to part-time
employees.
(4) At the end of the
FMLA leave entitlement, an employer is required under FMLA to reinstate the
employee in the same or an equivalent position, with equivalent pay and
benefits, to that which the employee held when leave commenced. The employer's
FMLA obligations would be satisfied if the employer offered the employee an
equivalent full-time position. If the employee were unable to perform the
essential functions of that equivalent position even with reasonable
accommodation, because of a disability, the ADA or an applicable state law may
require the employer to make a reasonable accommodation at that time by
allowing the employee to work part-time or by reassigning the employee to a
vacant position, barring undue hardship.
(d)
(1) If
FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave
entitlement, require an employee to take a job with a reasonable accommodation.
However, ADA or an applicable state law may require that an employer offer an
employee the opportunity to take such a position. An employer may not change
the essential functions of the job in order to deny FMLA leave.
(2) An employee may be on a workers'
compensation absence due to an on-the-job injury or illness which also
qualifies as a serious health condition under FMLA. The workers' compensation
absence and FMLA leave may run concurrently, subject to proper notice and
designation by the employer. At some point the health care provider providing
medical care pursuant to the workers' compensation injury may certify the
employee is able to return to work in a "light duty" position. If the employer
offers such a position, the employee is permitted but not required to accept
the position. As a result, the employee may no longer qualify for payments from
the workers' compensation benefit plan, but the employee is entitled to
continue on unpaid FMLA leave either until the employee is able to return to
the same or equivalent job the employee left or until the twelve (12)-week FMLA
leave entitlement is exhausted. If the employee returning from the workers'
compensation injury is a qualified individual with a disability, he or she will
have rights under the ADA or may have rights under an applicable state
law.
(e) If an employer
requires certifications of an employee's fitness for duty to return to work, as
permitted by FMLA under a uniform policy, it must comply with the ADA or any
applicable state law requirement that a fitness for duty physical be
job-related and consistent with business necessity.
(f) Under Title VII of the federal Civil
Rights Act of 1964, as amended by the federal Pregnancy Discrimination Act of
1978, or an applicable state law, an employer should provide the same benefits
for women who are pregnant as the employer provides to other employees with
short-term disabilities. Because Title VII does not require employees to be
employed for a certain period of time to be protected, an employee employed for
less than twelve (12) months by the employer and, therefore, not an "eligible"
employee under FMLA, may not be denied maternity leave if the employer normally
provides short-term disability benefits to employees with the same tenure who
are experiencing other short-term disabilities.
(g) Under the federal Uniformed Services
Employment and Reemployment Rights Act of 1994, 38 U.S.C. 4301-4333 (USERRA),
veterans are entitled to receive all rights and benefits of employment that
they would have obtained if they had been continuously employed. Therefore,
under USERRA, a returning service member would be eligible for FMLA leave if
the months and hours that he or she would have worked for the civilian employer
during the period of military service, combined with the months employed and
the hours actually worked, meet the FMLA eligibility threshold of twelve (12)
months and nine hundred fifty (950) hours of employment.
