Americans with Disabilities Act (ADA)

Family and Leave Act (FMLA)

Goal

• Ensures that people with disabilities have equality of opportunity, full participation and integration, independence, economic self-sufficiency

• Allows employees to balance work and family life

Background

• Title I requires employers to provide reasonable accomdations to employees in certain circumstances
• Leave can be a reasonable accommodation

• Leave entitlement law

Protects Employees

• If you are a qualified individual with a disability
• Qualified: An individual who can perform the essential functions of their position with or without a reasonable accommodation
• Disability: An individual with a physical or mental impairment that substantially limits one or more major life activities or who has a record of such an impairment
• No tenure requirement

• If you or your family member has a serious health condition and meet the tenure requirement
• Serious health condition: An illness, injury or physical/mental condition involving: (1) Any period of incapacity or treatment connected with inpatient care in a hospital, hospice, or residential medical care facility; or (2) Any period for pregnancy or pre-natal care; or (3) Continuing treatment by or under the supervision of a health care provider.
• Tenure requirement: Must have worked at least 12 months and worked 1,250 hours

Covered Employers

• Private employers with 15+ employees
• All state and local governments
• Note: The Illinois Human Rights Act’s disability protections apply to all private employers in Illinois

• Private employers with 50+ employees
• All public agencies (federal, state, local government agencies)
• All private or public elementary or secondary schools

Eligible Reasons for Leave

• Anything related to your own disability-related needs
• Examples: Medical appointments, treatments, time to adjust to new medications

• Own serious health condition
• Care for an immediate family member (spouse, child, parent) with a serious health condition
• Birth and care of newborn child
• Placement with the employee of a child for adoption or foster care

Length of Leave

• It depends on whether the leave is reasonable; would pose an undue hardship; would be effective; or there is an alternate, effective accommodation
• Note: In Illinois, a recent court case limited leave under the ADA to no more than two weeks to one month

• 12 weeks in a 12-month period
• Additional protections (up to 26 work weeks) for service members injured in the line of service and their family members
• Note: The FMLA leave entitlement may be extended as a reasonable accommodation under the ADA

Intermittent Leave

• Intermittent leave may be a reasonable accommodation

• Intermittent leave is required
• You must make reasonable effort to schedule treatments to avoid disruptions to your employer
• Your employer may require you to temporarily transfer to an available alternative position that better suits your reduced hours

Whether Leave Must Be Granted

• It depends on whether the leave is reasonable; would pose an undue hardship; would be effective; or there is an alternate, effective accommodation

• Yes. If you are eligible, you are entitled to up to 12 weeks of unpaid leave
• No reasonableness analysis

Maintenance of Health Benefits

• Only if your employer provides health benefits for other employees in the same leave or part-time status

• Yes. But your employer may require you to pay your share of the premiums

Paid or Unpaid

• Unpaid
• But you may choose and your employer may require you to take accrued paid leave concurrently

• Unpaid
• But you may choose and your employer may require you to take accrued paid leave concurrently

Requesting Leave

• Substance of request: You must tell your employer that you need leave due to a disability or medical condition
• Tip: Use “magic words” such as “I am requesting leave under the ADA as a reasonable accommodation”
• Tip: Request in writing, or follow up on conversation in writing
• Tip: Review the Helpline’s fact sheet on Requesting a Reasonable Accommodation

• Timing of request: Your employer may require foreseeable leave to be requested 30+ days in advance. Your employer may require unforeseeable leave to be requested as soon as practicable.
• Substance of request – first leave: You must provide enough information for your employer to reasonably determine whether the FMLA may apply to a leave request, but no special words are required
• Substance of request – subsequent leave: You must reference the qualifying reason or the FMLA

Employer’s Response

• Your request triggers your employer’s duty to engage in the interactive process to determine whether leave is a reasonable accommodation and, if not, whether any alternatives exist
• No specific forms required

• Your employer must provide you with specific notices regarding your eligibility, rights, responsibilities and designation
• Employers use Department of Labor (DOL) forms

Required Medical Support

• Usually. Your employer may request medical documentation in support of a reasonable accommodation request, so long as your disability and need for leave are not obvious
• Requested documentation must be limited to establishing your disability and need for accommodation

• Yes. Your employer will ask you to complete a DOL form to certify the serious health condition
• If your documentation is insufficient, your employer must tell you and give you time to fix it
• Your employer may require additional medical opinions, but if so, must pay for it
• Your employer may require periodic reports and/or recertification

Privacy of Medical Records

• Yes. Records must be kept confidential in a file separate from an employees’ personnel file
• Limited exceptions: Supervisors on a need-to-know basis, first aid personnel, government officials investigating compliance

• Yes. FMLA regulations reference the ADA’s confidentiality requirements and exceptions

Right to Return Following Leave

• Yes, unless reinstatement would pose an undue hardship
• But if reinstatement would pose an undue hardship, your employer must consider reassigning you to a vacant position that you are qualified for

• Yes. You must be reinstated to your same position or a position virtually identical in terms of pay, benefits, working conditions and substantially similar duties and responsibilities
• There is no undue hardship defense
• Limited exception: Key employees need not be reinstated
• Key employee: Among the highest paid 10% of employees within 75 miles of a worksite and restoration to employment would cause substantial and grievous injury to employer. If you are a key employee, your employer must tell you when you request leave

Medical Support When You  Return

• Yes, but requests must be limited to information that is job-related and consistent with business necessity
• If documentation is insufficient, your employer should explain why and give you time to provide supplemental information

• Yes, but requests must be specific to the particular health condition that required the FMLA leave
• Your employer is not permitted to require a second or third opinion, so long as your certification is sufficient

If You Are Unable to Do Job After Leave

• You can seek reasonable accommodations that will enable you to perform the essential functions of your current position. Please see the Employment Rights Helpline fact sheet about Requesting a Reasonable Accommodation to learn more
• If there are no accommodations that will enable you to stay in your current position, you can seek reassignment to a vacant position that you are qualified to do. Please see the Employment Rights Helpline fact sheet about Reassignment as a Reasonable Accommodation to learn more

• No reinstatement right if you are no longer able to perform the essential functions of your job
• FMLA regulations state that an employer may have an obligation under the ADA to accommodate you

Protection Against Retaliation

• Yes

• Yes

Enforcement

• Before going to court, you must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or the Illinois Department of Human Rights (IDHR)
• Deadline: 180 days from the adverse action for the IDHR or 300 days from the adverse action for the EEOC
• Tip: Please see the Employment Rights Helpline fact sheet about How to File a Charge of Discrimination to learn more

• You do not need to file a charge with any agency before going to court
• Deadline for federal court: Two years, or three years for willful violation (a court will decide if the conduct is willful so it is always best to file within two years)
• You may file a complaint with the Department of Labor
• Note: Your deadline to file in federal court remains the same regardless of whether you file with DOL

Additional Information

• EEOC, Employer-Provided Leave and the ADA

• DOL, Employee Guide to the FMLA