Both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) often apply to employees who are seriously ill or injured. When this happens, employers may be required to grant leave to the employee under both laws. What are employees legally required to provide?
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FMLA: Unpaid leave
The employee is entitled to up to 12 weeks’ unpaid leave in any 12-month period whether calculated by a calendar method, fiscal year method, or rolling method (counting backward from the date of the leave request, or forward from the date of the last leave request).
The employee is also entitled to 26 weeks of unpaid leave to care for a family member or next of kin who has incurred or aggravated a serious illness or injury while on active duty or who is a covered veteran.
Calculation for servicemember caregiver leave is different from that done for other types of FMLA leave. Servicemember caregiver leave begins on the first day the eligible employee takes FMLA leave to care for the servicemember and ends 12 months after that date.
Substituting paid leave. An employee may choose to substitute accrued paid leave for FMLA leave, or the employer may require the substitution of accrued paid leave for unpaid FMLA leave pursuant to the employer’s established policies for use of paid leave.
Disability leave. Paid leave provided under a plan covering temporary disabilities is considered to be FMLA leave for a serious health condition and can be counted against the leave entitlement permitted under the FMLA, as long as the disability qualifies as a serious health condition. For example, disability leave for the birth of a child would be considered FMLA leave for a serious health condition and counted in the 12 weeks of leave permitted under the FMLA.
Workers’ compensation. If an employee’s occupational injury also meets the definition of a serious health condition, time on workers’ compensation leave may run concurrently with FMLA leave if the injury is a serious health condition and the employer designates leave as FMLA leave.
ADA: No statutory cap
There is no maximum leave requirement under the ADA. The amount of leave due to an individual will vary depending on what constitutes a reasonable accommodation under the circumstances.
According to EEOC guidance, an employer does not have to provide paid leave beyond that which is provided to similarly situated employees. However, employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.
Other types of accommodation. Reasonable accommodation may include modifying job schedules, part-time scheduling, transfer to a vacant position, or granting leave that is reasonably likely to lead to the employee returning to work.
This article is part of a series that compares and contrasts various aspects of the two laws.
Next article: Benefits issues under both laws.