Can I take FMLA leave and leave under the ADA at the same time in Texas?
Sometimes an employee has a medical condition or disability that qualifies for FMLA leave and leave under the Americans with Disabilities Act (ADA) as a reasonable accommodation. The issue how to protect the employee’s job through protected leave under the ADA and FMLA is complicated. Each law provides a different set of rights to leave and overlap. Employers often get this issue wrong because they are unaware of ADA reasonable accommodation rules or do not understand that the ADA may apply to FMLA leave requests. HR departments may not be staffed with employees who thoroughly understand FMLA and ADA rights. They may not involve their lawyers appropriately in these decisions.
Under the FMLA, when protected leave may be a reasonable accommodation and the employee is eligible for FMLA, the employee is entitled to the law that provides the superior leave rights. There is a lengthy analysis the employer should use to make this determination. The employee should understand it to maximize his or her rights under the law. When in doubt, you should always consult with Texas employment lawyers before approaching your employer with a leave request.
Eligibility for Leave under the FMLA and ADA in Texas
Both FMLA and ADA have separate provisions for leave protections that apply to employee, employer and leave eligibility. Before analyzing which law provides a superior right the employer must first determine which laws apply to the employee.
FMLA Leave Eligibility in Dallas-Fort Worth
FMLA covers an employer if it has fifty or more employees within a seventy-five mile radius of the employee’s work location. The employee may take FMLA leave if she worked for a covered employer for 1,250 hours during the twelve months prior to the request. If the employee is eligible for leave then the employee is entitled to up to twelve weeks of unpaid leave in a twelve month period for a serious medical condition. The FMLA defines the meaning of a serious medical condition. The protected leave is limited to any certification provided by the employee’s physician.
ADA Leave Eligibility in Dallas and Fort Worth
Alternatively, the rules covering ADA-protected leave are more complex. ADA covers an employer if it has fifteen or more employees for at least twenty weeks within the year or prior year of the request. (Same is true for the Texas Labor Code.) ADA covers an employee merely by working for a covered employer. There is no length of service requirement like the FMLA.
However, to obtain a reasonable accommodation under the ADA the employee must be a qualified individual with a disability. The ADA defines a qualified individual as a person who can perform essential functions of the job with or without reasonable accommodation. The ADA further defines a disability with specific legal meaning. (This is beyond the scope of this post. But is discussed here.)
If an employee is a qualified individual with a disability and requests leave then the employer has an obligation to consider the request as a request for a reasonable accommodation. It must analyze available accommodations that meet the statute’s definition of a reasonable accommodation. The employer must also work with the employee to institute such an accommodation. Leave may be a reasonable accommodation for the employee’s disability and job duties. There may be other accommodations equally as reasonable available to the employer.
The employer is free to elect to offer a reasonable accommodation for the disability. It does not have to offer the employee the requested accommodation or the accommodation the employee wants most. If the employer offers non-leave accommodation but FMLA also applies then the employee can take FMLA leave and a reasonable accommodation upon return. (Subject to FMLA reinstatement provisions.)
Applying both FMLA and ADA Leave Protections to the Same Leave
Generally if the employee is covered by both statutes and requests leave then the employer must offer protected leave under whichever statute provides the superior protection. FMLA leave protections stop at twelve weeks within a twelve month period. The ADA does not place a numerical limit on leave protections. It is not uncommon to see extended leave up to six months under the ADA. This is particularly true when the disability is the result of a severe injury or illness and requires surgery. Intermittent leave may also enjoy broader protections under the ADA. Let’s consider a couple examples.
An employee at Daystar, the largest employer in Bedford, Texas where my office is located, develops a condition that qualifies as a severe medical condition under the FMLA and as a disability under the ADA. The employee is eligible for protection under both statutes. The employee files an FMLA leave request for leave to obtain surgery and requests the maximum twelve weeks but also tells the employer she may need additional time off for recovery depending upon how successful the surgery is at curing the condition. Here the employee has made a clear request under both statutes. The employee has turned in FMLA paperwork which unambiguously invokes FMLA leave protections.
The additional statement requesting additional leave time should be recognized by the employer as a potential ADA reasonable accommodation leave request. It must also make that separate analysis before it can lawfully reject the employee’s request for extended leave. The employee’s leave needs may exceed FMLA protections and likely would need to be considered under a reasonable accommodation analysis. The employer might best serve itself by approving the FMLA leave request and revisiting the extended leave need after FMLA ends. The employee may not know if additional leave is necessary or to what extent it is necessary. The employee may alternatively need light duty work rather than full absence from work.
Let’s take another example. Let’s use an employee at Telvista, a large call center in Grapevine. The employee has a physical condition requiring regular physical therapy. Sometimes it causes extreme pain that the employee has trouble walking and cannot leave the house. Let’s assume this condition is both a serious medical condition under the FMLA and a disability under the ADA. The employee fills out FMLA paperwork for intermittent leave for both therapy and occasional absence due to pain. He tells the employer that he may exceed the FMLA twelve week limit due to the pain-based absences. Like our first example this is clearly a request for FMLA leave plus a possible extended request that will trigger an accommodation analysis.
Here the employer could consider an assortment of accommodations and FMLA use. As a call center, Telvista needs people on the phones at given times to meet its calls. That means Telvista needs employees to have regular and consistent attendance. The optimum solution for the employee would likely be for the employer to offer a modified schedule. This takes therapy sessions off the schedule as reasonable accommodation and gives intermittent FMLA leave for the pain-based absences. But the employer does not have to pick what is best for the employee. Just what can be certified as leave under the FMLA request and what reasonable accommodation the employer offers.
Here the employer may decideit is more burdensome to give the employee additional time off and grant the FMLA request in full. Without additional leave protections the employee could lose the job when he exhausts FMLA-protected leave. As a reasonable accommodation, the employer could offer the employee equipment to take calls remotely when he cannot make it to work. Individual facts we haven’t explored may make this option unreasonable. (Such as the pain making it difficult to focus and effectively assist customers.) It certainly may be a reasonable accommodation that the employer could offer.
But the Reinstatement Rights…
When the employer attempts to assemble ADA and FMLA requests is how the employee’s ability to return relates to which law governs the leave. Both laws enjoy different protections. It is also important for the employee to invoke both laws and consider what combination the employee prefers. The ADA offers much stronger reinstatement rights. That may be a good reason why the employee may benefit from extending the leave request as a reasonable accommodation.
Under the FMLA, the employee can return to the same or similar position at the end of protected leave so long as the employee can perform the essential functions of the job. The employer does not need to find less strenuous work if the employee cannot perform the same services as before.
However, the ADA requires the employee return to the same job unless holding the job open is an undue hardship or the employee cannot perform the essential functions of that job. If so the employer must determine if an equivalent position is available to hold open without undue hardship. With no position available it must determine if a lower level position is available to hold open without undue hardship. If there is no such position available then the employer may cease protecting the leave as a reasonable accommodation.
Similarly, if the employee cannot perform the essential functions of his or her current job then the employer must look for a position that the employee can perform at the same or similar level. If none is available then the employer must look for a lower level position. If no position is available that the employee is qualified to perform then the employer does not have to reinstate.