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's considered a qualifying event under both laws.

Qualifying events under the ADA

A “qualified” individual is someone who satisfies the prerequisites for the position (i.e., the appropriate education, employment experience, or licenses) and can perform the essential functions of the job, with or without reasonable accommodation, at the time of the employment decision.

Under the amended ADA, a “disability” is defined as a physical or mental impairment that substantially limits one or more of the individual’s major life activities, or having a record of such impairment, or being regarded as having an impairment. Mitigating measures, such as prosthetics or medication are not considered when determining whether an individual has a disability.

“A physical or mental impairment” is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting any of several body systems.

“Record of” an impairment includes those who have a history of such an impairment and those who have been misclassified as having such an impairment.

“Regarded as” having an impairment occurs when an employer takes an adverse employment action against an individual because of an actual or perceived impairment—whether or not the impairment is an ADA disability. This does not apply to impairments that are transitory (expected or actual duration of 6 months or less) and minor.

Qualifying events under the FMLA

1) The employee’s serious medical condition, which is defined broadly to include:

• A physical or mental illness, injury, condition, or impairment that involves either (1) inpatient care (an overnight stay in a hospital, hospice, or residential care facility) or (2) continuing treatment by a healthcare provider for a condition that involves a period of incapacity for 3 consecutive calendar days and any subsequent treatment or period of incapacity that also involves either treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, or treatment by a healthcare provider that results in a regimen of continuing treatment under the supervision of a healthcare provider
• Any period of incapacity because of pregnancy or prenatal care
• Any period of incapacity because of a chronic serious condition (that requires visits to a healthcare provider at least twice a year)
• Any period of absence to receive multiple treatments by healthcare providers for reconstructive surgery or for a condition that would likely result in a period of incapacity of more than 3 consecutive days if untreated

2) The serious medical condition may of the employee's parent, spouse, or child.

3) Leave for birth, adoption, or foster care—12 weeks of “bonding leave” available to either men or women. No medical certification is required. Bonding leave must be completed within 12 months of the date of birth or placement.

4) Qualifying exigency. Qualifying exigencies include short-notice deployment, military events, child care and school activities, financial/legal arrangements, counseling, rest and recuperation, postdeployment activities, and other matters agreed on by the employer and employee.

5) Serious injury or illness for purposes of servicemember caregiver leave. For a member of the armed forces, the term “serious injury or illness” means an injury or illness that was incurred or aggravated in the line of duty while on active duty in the armed forces and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

In the case of a veteran who was a member of the armed forces, a “serious injury or illness” means a qualifying injury or illness that manifested itself before or after the member became a veteran. The illness or injury must also be a continuation of a qualifying injury or illness, a condition with a VA Service Related Disability Rating of at least 50 percent, a condition that substantially impairs the veteran’s ability to get or keep a job or an injury for which the veteran has been enrolled in the VA’s Program of Comprehensive Assistance for Family Caregivers.

A covered veteran’s discharge must fall within the 5-year period before the first date the eligible employee takes FMLA leave to care for the covered veteran.

ADA and FMLA Compared

If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations, barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee his or her FMLA rights.

ADA’s “disability” and FMLA’s “serious health condition” are different concepts and must be analyzed separately. For example, some disabilities, such as cancer or a serious stroke, may also be serious health conditions.

However, some FMLA-covered serious health conditions, such as leave for the birth of a child, do not qualify as ADA-covered disabilities because the condition is not an impairment or because the impairment is not substantially limiting. In addition, the fact that an individual has a record of a serious health condition does not necessarily mean that he or she has a record of an ADA disability.

Remember that under the ADA, an individual must have a record of a substantially limiting impairment in order to be covered.