FMLA and ADA OverlapFamily, Medical, and Other Leave Discrimination
The FMLA and the ADA are the two primary laws that protect those requiring leave from work. These laws overlap in some respects, yet they have significant differences.
Which employers are covered by the FMLA?
The ADA applies to any employer with fifteen or more employees. The FMLA applies to employers with fifty or more employees within a seventyfivemile radius. So, if your company has thirty employees in Fairfax, Virginia, and another thirty in Albany, New York, it is not covered by the FMLA, but it is covered by the ADA.
Which employees are covered?
The ADA covers any employee with a disability who can perform the essential functions of their job with or without accommodations. In most respects, the ADA does not protect those who need to provide care to family members.
The FMLA covers any employee who has worked for the company for at least one year and for at least 1,250 hours during that year. The employee must suffer from a serious medical condition—one that requires hospitalization or a continued course of treatment. The FMLA also covers the birth of and bonding with a child, including an adopted child. An employee can also take FMLA leave to care for a parent, spouse, or child suffering from a serious health condition. For those in military families, the spouse, child, parent, or next of kin of service members can take up to twentysix weeks in a oneyear period to care for the service member. There are additional FMLA benefits for service members and their families.
Does the FMLA require an employer to make changes to my work space?
No. The FMLA requires only that your employer provide you with leave from work. The ADA, however, does require your employer to make reasonable accommodations that allow you to perform your job.
Does the ADA require my employer to provide me with leave from work?
Maybe. Leave from work can constitute a reasonable accommodation, though the law does not specify any time period. So, a week could be the longest reasonable accommodation required under the ADA. Under the FMLA, however, a covered employee is entitled to a full twelve weeks per year.
Significantly, for those with health problems, it can be possible to stack FMLA and ADA leave. For instance, you could exhaust your FMLA leave and qualify for additional leave under the ADA, though the duration of leave will vary depending on circumstances.
Can I take ADA leave when I give birth to my child?
No, unless you become disabled, as defined by the ADA, while giving birth. A normal pregnancy will often not result in ADA coverage. If you are protected by the FMLA, however, you are entitled to twelve weeks of unpaid leave, regardless of whether you are disabled.
Must my employer give me leave from work to take care of a sick family member?
Not under the ADA. The ADA requires an employer to accommodate only you. In contrast, FMLA requires covered employers to give employees protected under the law up to twelve weeks of unpaid leave to care for a child, spouse, or parent suffering from a serious health condition.
My son has to travel overseas for work, but he is not in the military. Do I qualify for FMLA leave to care for my grandchild while he is away?
No. FMLA offers leave to provide for only spouses, children, or parents with a serious medical condition.
Can I sue under both the FMLA and the ADA if my employer fires me while I’m on leave?
Possibly. Unless your employer can show that it would have eliminated your position even if you were not on FMLA leave, you can sue for interference with your FMLA rights. It is possible that your employer also violated the ADA, if you were out as the result of an accommodation request under the ADA. (Though, as a tactical matter, it makes little sense to request leave under both statutes simultaneously. Take FMLA leave first, then follow up with a request for leave under the ADA if you suffer from a disability.) You might also have a claim for both under a set of facts like these: You requested an accommodation at work, a quiet office to work in while you recovered from post concussion migraines that have plagued you for almost a year now. Your employer eventually gave in, but only after you hired an attorney. Even after that, someone overheard your boss complaining about the “disruption” you caused and saying that he believed you were faking it. A day later, you were in a car accident and took FMLA leave while you were in the hospital. The day before you were to be discharged, your boss called and fired you, saying, “Things just aren’t working out.”
Here, you have a claim for both. You have a retaliation claim under the ADA because it appears that your boss fired you because he did not like that you asked for the protection under the ADA. You also have a claim for interference and retaliation under the FMLA because, by firing you, your boss unlawfully interfered with your FMLA right to leave. It also looks like he may have fired you because you sought protection under the FMLA.
Is my company required to give me FMLA leave if I qualify for it even if I didn’t mention the FMLA law in my request?
Yes, your company is required under the FMLA to tell you about your right to leave if you do something that reasonably put your company on notice that you are entitled to the leave. For instance, if you are in a car accident and require a week of hospitalization, your employer must give you FMLA leave even if you don’t know to ask for it.