Although the legal requirements of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are similar in some regards, at times an employer may find that the requirements of one law contradict the other, and the employer cannot comply with both laws. In these cases, it is important to know which law takes precedence, or “trumps,” the other.

Here, we present a workplace scenario where the FMLA and the ADA are both in play. Then we provide relevant information about each law and about the action should be taken by the employer.

Facts

Note: If you have read our previous article, FMLA and ADA interplay quiz: Reinstatement after leave, the facts regarding the employee's FMLA leave is the same--but a new employer concern arises. You can skip down to "OK to require medical exam?" section for new details (or keep reading this Facts section to refresh your memory).

"Joe" is an employee of Good Fellows Industries, Inc., a large industrial employer. Joe has been out of work on FMLA leave for 10 weeks due to a serious back injury suffered in a skiing accident. Joe’s injury is partially permanent and will substantially limit his ability to bend and lift. Before taking leave, Joe worked on the loading dock, lifting and carrying heavy cartons on a regular basis.

Today Joe appears at work with a fitness-for-duty medical certification from his doctor stating his ability to return to work, but that he is unable to do heavy lifting (an essential function of the job). Joe acknowledges that this is true. However, he wants to start working immediately.

Joe’s position could not be held open for 10 weeks, so it has been filled. Currently, there are no other vacancies for positions equivalent to the dock loader’s position, but there is a vacancy for which Joe is qualified—an assistant to the dock loaders that requires only light lifting.

OK to require medical exam?

The employer is not sure that Joe will be able to do the required light lifting and carrying of the assistant dock loader’s position—and that he may hurt himself trying to do the new job. The employer would like to send Joe to the company doctor for an examination to ensure he can perform the assistant dock loader’s job, but the employer is not sure it can ask him to do so. What should the employer do?

The law

The ADA allows employers to require a medical examination for employees returning to work from an injury, as long as the exam is job related and consistent with business necessity. Under the ADA, the employer may ask Joe to have his back examined to determine whether he can still do the lifting and carrying required by the new position. Note that the employer could not ask Joe to have a full physical, since this would be outside the scope of business necessity and job-relatedness.

Under the FMLA, an employer may require a fitness-for-duty certification to simply state that the employee is able to return to work or that it states that the employee is able to perform the essential functions of his or her job. However, in this case, the FMLA would not apply. Joe is no longer able to perform the essential functions of his original job—a requirement for FMLA reinstatement rights.

Advice for employer

Since Joe is requesting an accommodation under the ADA (assignment to another position), the employer may require Joe to have his back examined by a company doctor (at the company’s expense). In this case, the ADA “trumps” the FMLA and allows the exam.

Note: The ADA will trump the FMLA in this case only if Joe (and his fitness-for-duty certification) admits that he cannot perform the essential functions of his original job. If the fitness-for-duty certificate indicates that Joe can perform the original job, and Joe asks to be returned to his original job, the certification is conclusive, and the employer would have an obligation (under the FMLA) to return him to the original job without further exams.