FMLA is complicated. Even the acronym is kind of complicated, if you ask me! The Family Medical Leave Act was enacted originally in 1993 and has gone through a number of amendments since then. FMLA is designed to protect someone’s job while they attend to their own medical need or the medical need of an immediate family member. There is a long and winding road that passes through most FMLA cases and they are typically not cut and dry, particularly when employee rights under the Americans with Disabilities ACT (ADA) intersect with FMLA.
A few things to keep in mind.
FMLA is not required in all cases. For example, you may work for an employer with less than 50 people who does not have to comply with FMLA. But even smaller employers implement FMLA-like policies so pay attention to this example if you fall into either category!
ADA compliance is required with all employers.
I was supporting a client recently and wanted to share the scenario. All names have been changed to protect the parties involved … and now suddenly I feel like I’m a TV show writer! With that, I’ll set the stage for you.
A long term, valuable employee named Jake is employed at this company we will call Smoke’s Tool Shed. Smoke’s has 67 employees who work in one location. Jake was diagnosed with cancer a year ago but he’s been working the whole time he’s been taking his treatments. Smoke’s was willing to work with him if he had to come in late or leave early for his treatments or he wasn’t feeling well. Everyone was really proud and supportive of Jake during his treatments.
Recently though, Jake hasn’t been feeling well and he’s been taking off quite a bit of time. Jake is a tool crib leader which is an important position at Smoke’s. Without Jake other people have to organize the tools and keep track of who borrowed the tools and who hasn’t returned them to the crib. People are starting to complain that they can’t keep picking up the slack for Jake.
What’s a company to do in this situation?
The first question that comes to mind is FMLA because you’ll notice it’s not referred to in the example. Whether you’re “being nice” to an employee or not – or if you’re an employee who thinks your company is being really nice to you – you need to get the FMLA paperwork completed at the beginning of this type of illness. It’s important to get the clock ticking for FMLA eligibility as well as tracking hours towards what may fluctuate between an intermittent and full time leave. There’s not time like the present, so I recommended to my client to get the FMLA paperwork drafted and sent to the employee’s physician for completion.
The other thing about FMLA is it’s a law designed to protect someone’s job. Because every case is different I’m going to write recommendations to consider. We can talk about your approach in more detail if you send me an email.
This case is the test case for a concurrent FMLA and ADA situation. These situations are complicated to handle but it’s not impossible. Remember, both laws are designed to protect someone’s job.
- If Jake needs to have time off because he can’t work in his current position AND he hasn’t exhausted his FMLA time for the 12 month eligibility period, then Smoke’s will have to keep him in the job he’s in and allow him the time off. Smoke’s can ask others to pick up his work or hire a temp, but if FMLA isn’t exhausted then Jake has to remain the employee “of record” for that particular job under FMLA. And any time he is available to work he has the first right to work that job.
- Whether he’s exhausted FMLA or not, the ADA’s interactive process comes into play. If he medically needs a less physically intense position and you have one to offer then what you described in your message is a good approach to have a reasonable accommodation under the ADA.
- If Jake’s exhausted his FMLA and Smoke’s doesn’t have a position to move him into, Smoke’s still has to go through the interactive process of having a medical review to determine his capabilities.
If you work for an employer that does not offer FMLA, remember that the interactive process under the ADA must still be followed in order to learn about necessary accommodations for the employee.
I’ve written other blogs on FMLA and leaves of absences. Check them out here:
I hope this is helpful but if you need additional support feel free to contact me!