FINEOS recently presented a DMEC Tools & Tactics Webinar on key areas of focus to fortify your Leave Administration Plan Strategy. When we discussed the topic of leave as an accommodation under the Americans with Disabilities Act (ADA), we polled the webinar attendees on whether simply requesting and exhausting FMLA leave puts an employer on notice that the employee may need leave as an accommodation under the ADA or whether the employee must request ADA leave separately from FMLA. Employers’ responses were evenly split 50/50.
- Yes: if an employee’s FMLA leave is exhausted, the request triggering exhaustion constitutes notice that the employee may need leave as an accommodation under the ADA.
- No: an employee who exhausts their FMLA leave must independently ask for leave as an accommodation under the ADA, because mere exhaustion of FMLA does not, in and of itself, constitute notice.
- According to the courts, the answer is: yes, no, and maybe.
Leave Designation Under Both Laws
FMLA regulations make it clear that both FMLA and ADA can apply to a single instance where an employee requires time off work for their own health concern: “If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations, etc., barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee his or her FMLA rights.”[i] The term “disability” under the ADA and the FMLA’s “serious health condition” are different concepts with each requiring its own separate analysis, but they can operate simultaneously. An employee that meets the eligibility requirements of both FMLA and ADA may have their leave designated under both laws. Significantly, this means that an employer may be obligated to provide the best of both worlds: for example, the greater reinstatement rights under the ADA (reinstatement to the same job, not merely an equivalent role) while also being required to uphold all superior benefits of the FMLA, such as maintaining group plan coverage.
While both can apply, courts in several circuits have struggled to determine the scenarios where both do apply, and who bears the responsibility of raising the issue, specifically where the application of the ADA may be less obvious. With some exceptions, the body of case law in this area appears to follow a theme:
- If an employee requests FMLA leave, this may trigger an obligation for an employer to consider the ADA interactive process.
- If the employee’s sole request is for time off, an employer meets this obligation by providing the requested FMLA leave.
- Courts rarely hold that an employer bears a responsibility to explore whether a non-leave accommodation is needed, where there are no facts to put the employer on notice that such an accommodation is necessary.
Where FMLA intermittent leave request meets an ADA accommodations request
In Capps v. Mondelez Global, LLC, an employee suffered from flare-ups resulting from Avascular Necrosis, a condition that severely restricts blood flow. The employee was granted intermittent FMLA and was recertified every six months for a period of 10 years. On one occasion, while on FMLA leave, he went out to the bar and had some drinks which resulted in a DUI. When the employer read about the DUI arrest in the paper, they questioned the employee as to the veracity of the FMLA leave request. As the investigation unfolded, the employee was unable to provide evidence that was satisfactory to the employer to support his side of the story that his absences were truly FMLA related. The employee was terminated for violating the company’s Dishonest Acts Policy.
The employee argued that his employer violated the ADA by failing to accommodate his disability. He argued that his request for FMLA intermittent leave should have signaled to his employer that he required a reasonable accommodation. The United States District Court in the Eastern District of Pennsylvania, in sticking to its past holdings, noted that FMLA leave is not a reasonable accommodation under the ADA. The court stated:
“By requesting FMLA leave, the employee is telling his employer that he has a serious health condition that makes the employee unable to perform the functions of the position of such employee. On the other hand, an employee that requests a reasonable accommodation under the ADA is signaling that he can perform the essential functions of the employment position.”[ii]
However, in 2017, on appeal, the Third Circuit[iii] clarified that a request for FMLA may qualify as a request for a reasonable accommodation under the ADA but stuck to its conclusion that the employer had not violated the ADA. Since the employee’s request for intermittent FMLA was granted, the court held that his ADA claim had no merit; even if the FMLA leave had triggered the ADA interactive process, the employer met its obligation because Capps received his accommodation when his FMLA-requested leave was approved.
FMLA request doesn’t automatically equate to an ADA accommodation request
In 2017, the Fifth Circuit[iv] in Acker v. General Motors, LLC, dealt with an employee who suffered from acute iron-deficiency anemia causing him blackouts, grayouts, heart palpitations, and fatigue. As a result, the employee was granted intermittent FMLA leave. There were very specific procedures to follow under a collective bargaining agreement and GM’s policy when taking FMLA leave. An employee was required to call in at least 30 minutes before their shift if they were calling out for an FMLA reason. Additionally, an employee had to call the GM Benefits & Services Center at the end of their shift to report their FMLA absence.
Acker failed to comply on many occasions with these procedures and was placed on unpaid suspension, and Acker filed suit for damages. Part of Acker’s claim was that his request for FMLA leave was also a request for a reasonable accommodation for a disability under the ADA and his suspension constituted disability discrimination.
The Fifth Circuit took a hardline approach, relying upon a 2001 decision out of the First Circuit,[v] and concluded that request for FMLA leave alone is not a request for an ADA reasonable accommodation. The court stated, “…a request for FMLA leave is not a request for a reasonable accommodation under the ADA…The ADA and the FMLA have divergent aims, operate in different ways, and offer disparate relief.”[vi] Referencing part of the 2015 Capps decision, the court concluded that “an employee seeking FMLA leave is by nature arguing that he cannot perform the functions of the job, while an employee requesting a reasonable accommodation communicates that he can perform the essential functions of the job.” Though decided shortly after it was published, this court does not appear to have considered the later 2017 Capps appeals court decision, which acknowledged that FMLA may qualify as a request for a reasonable accommodation under the ADA. This could suggest that this topic has evolved from this earlier hardline approach.
When granted FMLA leave suffices to meet ADA obligations
In a 2020 case, the United States District Court in the Eastern District of Pennsylvania addressed the same issue. In Watson v. Drexel Univ., Watson worked as a custodian who was diagnosed with leiomyoma, a benign condition of the fibroids and tumors in the uterus, which caused her heavy bleeding and fatigue while working. Upon informing the Director of Custodial and Support Services, Daryl Carlton, he suggested she take time off and use FMLA leave to do so. Watson took leave and requested FMLA coverage but was denied due to a failure to submit required medical documentation. Importantly, there was no talk about possible work accommodations.
Watson claimed that her employer failed to accommodate her disability by failing to engage in the interactive process. To succeed in her claim, Watson needed to show that her employer did not make a good-faith effort to assist her in seeking accommodations, i.e. engaging in the interactive process. Watson argued that her employer failed in this regard because Carlton knew that she had a disability—which was the whole reason she was using FMLA leave—and failed to engage in the interactive process.
The court did not agree with Watson and pointed out that Carlton had encouraged her to apply for FMLA leave. Watson freely took her FMLA leave, and no one prevented her from doing so until she failed to submit the required recertification. The court makes a subtle, but important, statement:
“Although Drexel [Watson’s employer] knew of Watson’s disability, it had every reason to believe that Guardian’s [Drexel’s insurance carrier’s] proffered reasonable accommodation—intermittent FMLA leave—was sufficient to accommodate Watson, and Watson never indicated otherwise.”
Here, the court clarifies that granting FMLA leave can suffice to meet the employer’s obligations under the ADA, highlighting the fact that the FMLA and ADA can be applicable simultaneously, and granting a request for one can satisfy the obligations of the other. Certainly, one can conclude from this case that in some instances, a request for FMLA can put an employer on notice that ADA is also being triggered. An employer may have to consider running ADA concurrently with FMLA.
Filing FMLA does not automatically activate the interactive process
In Forman v. City of Middleton, a 2021 case from the Western District of Wisconsin, Forman worked for Middleton’s IT department as an engineering technician and director. He was diagnosed with major depressive disorder due to work stress, marital problems, and his sister’s terminal illness. He took FMLA leave for his depression and was placed on a performance improvement plan upon his return. Eventually, he took another two weeks of FMLA leave. After his return, an audit was done on the IT department which resulted in his termination.
Forman claimed that the city failed to accommodate his disability, specifically that the city did not engage in the interactive process to determine the severity of his disability and appropriate accommodations. In citing the Seventh Circuit,[vii] the court stated that “a request for FMLA leave doesn’t necessarily trigger an employer’s duty to engage in the interactive process.”[viii] The court in referencing Capps, summarized that an “FMLA request indicates that an employee is unable to perform his job for a period of time, not that he will be able to perform his job with modifications when he returns.”
There is a key distinction in the Forman case: it appears that Forman argued that upon his return from FMLA leave, he was entitled to additional (unspecified) at-work accommodations to enable him to perform his job duties. This differs from the question of whether the time off could be concurrently or consecutively covered by the FMLA and ADA. In Forman, the issue doesn’t appear to be that he needed additional leave as an accommodation, but rather that his disability contributed to his inability to perform his job duties. Forman argued that his employer, as a result of being aware that he suffered from a disability, owed a duty to proactively explore whether any reasonable accommodations would assist him in his job duties. The court balked at imposing this obligation, stating, “[his FMLA request] noted that Forman was unable to perform certain job functions and manage his current symptoms well enough to maintain effective performance, but it didn’t suggest that he would need accommodations when he returned to work or that any accommodations would help his depression.” And since Forman had demonstrated that he was an effective communicator and able to request help when needed, the company did not owe him any heightened duty to inquire as to whether he was adequately accommodated.
The overlap between the ADA and the FMLA creates a complicated web of issues, further stymied by fact-specific issues such as notice procedures and documentation. Whether to run ADA leave concurrently with FMLA as a matter of course may be an area where employers and TPA’s differ in their business process. Employers should exercise caution in instances where both the FMLA and ADA apply and should be watchful for indications that instigation of the interactive process is warranted. Carriers, TPAs, and employers that have a flexible, configurable leave system that includes accommodations in a single system allows for both flexibility when it comes to compliance risk tolerance and change in leave practices due to court cases interpreting leave laws.
How can FINEOS help?
Using modern insurance technology solutions like the FINEOS Platform can help insurance carriers remain agile and competitive when accommodations interactive process questions arise. Learn more about how FINEOS IDAM (integrated disability and absence management)solution can help your organization adapt to sudden changes and remain in compliance here.
Contact FINEOS today to request VIP access to watch a 15-minute video recording of the FINEOS IDAM workplace accommodation functionality.
[i]29 C.F.R. 825.702(b) (2022).
[ii] Capps v. Mondelez Global, LLC, 147 F.Supp. 3d 327, 340 (E.D. Pa 2015); Capps v. Mondelez Global, LLC (3rd Cir 2017).
[iii] The Third Circuit covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands.
[iv] The Fifth Circuit covers Louisiana, Mississippi, and Texas.
[v] Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001); The First Circuit covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
[vi] Quoting Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001) (“Where the ADA is concerned, a finding of disability is the key that unlocks the storehouse of statutory protections.”).
[vii] The Seventh Circuit covers Illinois, Indiana, and Wisconsin.
[viii] Quoting Taylor-Novotny v. Health Alliance Medical Plans, Inc., 772 F.3d 478, 496 (7th Cir. 2014). (“Although the interactive process for accommodations officially began in March 2010, Health Alliance had been aware of Ms. Taylor-Novotny’s multiple sclerosis since at least May 2008, when she submitted an FMLA certification and request.”).