It’s likely that by now you know that the recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA.
Yesterday morning, KJK’s Labor & Employment lawyers (me included) held a spirited Breakfast Briefing discussing the recent ADA amendments. One of the topics covered was the impact of the ADA on employers’ obligations under the FMLA. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?
In light of this intersection between the ADA and the FMLA, employers should beware the following mistakes:
- Those un-covered by the FMLA should not assume that they never have to provide unpaid leaves to employee.
- Employers covered by the FMLA should not assume that ineligible employees are never eligible for unpaid leaves.
- Employers should not assume that the leave of an FMLA-eligible employee is capped at 12 weeks.
Instead non-FMLA employee medical leaves of absence should be determined between the employer and the employee through the use of the ADA’s interactive process. Otherwise, you are putting yourself in the crosshairs of an ADA claim.
For the benefit of those who could not attend yesterday’s Breakfast Briefing, the slides are available below.Handling Employee Medical Issues Under the ADAAA (KJK Breakfast Briefing: April 12, 2011)