Goal

Title I makes employers give reasonable accommodations to employees at certain times.

Leave is a reasonable accommodation.

Leave entitlement law.

If you are a qualified person with a disability.

Qualified: A person who can perform the essential functions of their job with or without a reasonable accommodation.

Disability: A person with a physical or mental impairment that substantially limits one or more major life activities or who has a record of such an impairment.

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 medical care facility; or (2) Any period for pregnancy or prenatal care; or (3) Continuing treatment by or under the supervision of a health care provider.

Private employers and state and local governments with 15+ employees.

Private employers with 50+ employees.

All public agencies (federal, state, local government agencies).

All private or public elementary or secondary schools.

Unpaid

But you may choose and your employer may require you to take accrued paid leave at the same time.

Unpaid

But you may choose and your employer may require you to take accrued paid leave at the same time.

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.

It depends on if the leave is reasonable; would cause an undue hardship; would be helpful; or if there is a different accommodation that works.

Note: In Illinois, a recent court case limited leave under the ADA to no more than a couple of weeks.

12 weeks in a 12-month period.

Additional protections (up to 26 work weeks) for service members injured in the line of duty and their family members.

Note: The FMLA leave 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 try to schedule treatments to avoid disruptions to your employer.

Your employer may make you temporarily switch to an available different position that better suits your reduced hours.

It depends on if the leave is reasonable; would create an undue hardship; would be effective; or if there is an alternate accommodation that will work.

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 gives health benefits to other employees in the same leave or part-time status.

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

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: Ask in writing/email or follow up on conversation in writing.

Timing of request: Your employer can make employees ask for leave at least 30 days in advance. Your employer may require unforeseeable leave to be asked for as soon as possible.

Substance of request – first leave: You must provide enough information for your employer to reasonably decide

if the FMLA applies to your leave request. No “magic words” are needed.

Substance of request – subsequent leave: You must state the qualifying reason or the FMLA.

Employer’s Response

Your request must engage in the interactive process to decide if your request for leave is reasonable and, if not, if any alternatives exist.

No specific forms required.

Your employer must give you specific notices about your eligibility, rights, responsibilities, and designation.

Employers use Department of Labor (DOL) forms.

Required Medical Support

Usually. Your employer can ask for medical documentation to support a reasonable accommodation request if 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 documents are missing something important, your employer must tell you and give you time to fix it.

Your employer may ask for more medical opinions, but it has to pay for them.

Your employer may require periodic reports and/or recertification.

Privacy of Medical Records

Yes. Records must be kept confidential in a file separate from your personnel file.

Limited exceptions: Supervisors on a need-to-know basis, first aid

personnel, and government officials investigating compliance.

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

Right to Return After Leave

Yes, unless coming back would be an “undue hardship” (very hard or expensive).

If reinstatement causes an undue hardship, your employer must think about reassigning you to a vacant position you are qualified for.

Yes. You must get your job back or a job virtually identical in terms of pay, benefits, working conditions and very similar duties and responsibilities.

There is no undue hardship defense.

Limited exception: Key employees do not need to be reinstated.

Key employee: The highest paid 10% of employees within 75 miles of a worksite and getting the job back 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 missing something, your employer must say what it is missing and give you time to get that information.

Yes, but requests must be specific to the 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.

Protection Against Retaliation

Yes

Yes

If You Are Unable to Do Your Job After Leave

You can ask for a reasonable accommodations that will let you do the essential parts of your current job. See CAP’s Fact Sheet on “Requesting a Reasonable Accommodation” to learn more.

If there are no accommodations that will help you work in your current job, you can ask for reassignment

to an open position that you are qualified for. See CAP’s Fact Sheet on “Reassignment as a Reasonable Accommodation” to learn more.

No reinstatement right if you are no longer able to do the essential functions of your job.

FMLA regulations say an employer may have an obligation under the ADA to accommodate you.

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: 300 days from the adverse action.

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 from the adverse action, or three years for willful violation (a court will say if the conduct is willful so it is best to file within two years).

You may file a complaint with the Department of Labor.

Note: Your deadline to file in federal court is the same even if you file with DOL.

Additional Information

EEOC, Employer-Provided Leave and the ADA: www.eeoc.gov/eeoc/ publications/ada-leave.cfm

See CAP’S Fact Sheet on, “Taking Time Off of Work Because of Your Disability”

DOL, Employee Guide to the FMLA: www.dol.gov/whd/fmla/ employeeguide.pdf