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 and to accommodate the employee under both the FMLA and the ADA.

This article series examines similarities and differences between the FMLA and the ADA so that you can stay in compliance when both laws apply. Here, we compare what employees are eligible for coverage under each law. Our previous articles, here and here, compare other aspects of the 2 laws.

Employee eligibility under the ADA

The ADA uses the term 'qualified individual' to designate an eligible employee under the law. A qualified individual must be an individual with a disability who can perform the job with or without reasonable accommodation.

Employee eligibility under the FMLA

Time/hours worked. In order to be eligible under the FMLA, an employee must have worked for the employer for a total of 12 months (which need not be consecutive) and for a total of 1,250 hours in the most recent 12 months, counting backward from the date leave is to begin.

The 12-month service requirement does not require consecutive months of service. It includes periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health plan benefits).

An employee is counted as having worked during a workweek if he or she was on the payroll for any part of that week.

Minimum worksite size requirement. An eligible employee must work at a worksite with 50 or more employees within a 75-mile radius in order to be eligible for the FMLA.

The worksite employee count is made when the employee requests leave, not when the employee begins leave (unlike the minimum service and hours requirements).

The 50-employee requirement for employee eligibility is separate and distinct from the 50-employee requirement for employer coverage. It is possible for an employer to have 50 or more employees and still have employees who are ineligible to take leave because they work at a site that is too small to satisfy the minimum worksite size requirement.

Example: XYZ Convenience Stores, Inc., employs 1,500 workers nationwide. XYZ is a covered employer under the FMLA. However, XYZ has only one store in Idaho, with five employees. The next nearest XYZ Convenience Store is 300 miles away. XYZ does not have to grant FMLA leave to any of its Idaho store workers, regardless of the hours they have worked, because they fail to meet the minimum worksite size requirement.

On the other hand, in the densely populated New York metropolitan area, XYZ has 22 stores, all within a 75-mile radius of one another. All 110 employees of these stores satisfy the worksite requirement of the Act and, provided they have worked the requisite hours and months, are eligible for FMLA leave.

Next week: Notice and Posting Requirements under both laws compared