As expected, the Americans with Disabilities Act (ADA) grants unpaid leave as a reasonable accommodation to workers with a disability. In some cases, leave on a short term, long term, or even hourly basis, will be the only effectual accommodation. While we generally think of the ADA as applicable in disability cases, the Family and Medical Leave Act of 1993 (FMLA) overlaps with some provisions of the ADA and may provide additional leave. This statute does not specifically cover people with disabilities, but extends coverage to those with serious health conditions.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

• for the birth and care of the newborn child of an employee;
• for placement with the employee of a child for adoption or foster care;
• to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of a serious health condition.

Qualified individuals with disabilities covered under the ADA must also meet the FMLA qualification requirements of at least 12 months of total employment and at least 1250 hours worked in the prior 12 months to be eligible for FMLA leave. http://www.dol.gov/whd/fmla/index.htm

The ADA, when combined with FMLA leave, has the potential to extend beyond the 12 week allowance. Under the ADA, a qualified individual with a disability may work part-time or take occasional time off, assuming it does not impose an undue hardship on the employer. If it creates an undue hardship, the employer must try to reassign the employee to a vacant equivalent position, and “as a last resort, to a vacant lower position so that the leave or reduced schedule could be continued”. http://www.ilr.cornell.edu/edi/hr_tips/. Under the FMLA, an employer has the ability to require a worker to transfer to an alternative position with equivalent pay and benefits for the duration of the leave. The last difference between the two laws deals with reasonable accommodation. According to the ADA, an employer can offer a worker alternative accommodations to taking leave so long as the accommodation is effective. “However, if the individual is eligible for FMLA leave and has a serious health condition that prevents him/her from performing an essential job function, s/he has the right to take a leave of up to 12 workweeks in 12 months, even if s/he could continue working with a reasonable accommodation”.

When the ADA and the FMLA apply to an employee’s initial 12 weeks of medical leave, the employer must provide leave under whichever provision affords greater rights to the employee. Of course, there are requirements as to what constitutes a “serious health condition” or disability under the two laws, but in some cases a condition may fall under both laws. What is your experience with utilizing the ADA and/or FMLA?