How to Play Nice in the FMLA and ADAAA Sandbox

I recently read a story about a college faculty member who sued her employer for violating her rights under both FMLA and ADAAA. The story caught my eye because it shows the potential for both federal entitlements to exist in the same space and the challenges in trying to administer them.

Separate but Similar

I often see employers struggling with how to comply with both laws without violating an employee’s rights. They express concerns such as, “How can we tell if an employee truly has a serious health condition under the FMLA?” And, “What questions can we ask at the same time so we are doing our due diligence under the ADAAA?”

If your HR team is wrestling with similar issues, remember that although FMLA and ADAAA play in the same space, they are two very separate laws that require unique handling. Too often, companies try to expand medical certification forms to include as much information as possible for ADAAA, rather than just focusing on the FMLA information it was designed to collect.

Doing Double Duty

Eligible employees may take up to 12 weeks of FMLA for qualifying reasons. A serious health condition is a qualifying reason. A serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider and makes the employee unable to perform the functions of his or her job.

The key is the employee’s inability to work due to his or her own serious health condition. The federally supplied medical certification form requires a health care provider to provide relevant medical facts to support that the employee has a serious health condition. This is a golden opportunity to not only have an employee meet their requirements under FMLA, but also to get information to help determine if an employer needs to apply any accommodations under ADAAA.

Before you start doing backflips in joy, take note: The medical certification form clearly states that if the employer does not provide the essential job functions, the health care provider must rely on the employee’s description of the job and its essential functions to help determine accommodations. If you are asking a health care provider to complete a medical certification to assess reasonable accommodations under the ADAAA, it is helpful to provide a copy of the job description with the certification form for the health care provider to review.

The ADAAA has shifted the focus away from the definition of disability, and toward what reasonable accommodation(s) should be allowed because of the disability. That’s another good reason to send the essential job description to the health care provider, along with the medical certification form. Then the employer can use any restrictions that the health care provider specifies as a good starting point to engage with the employee on the interactive process for reasonable accommodations.

Five Best Practices for Employers

Here are five best practices for your organization to consider. Share them with your team to help make sure that everyone plays nice in the FMLA/ADAAA sandbox:

• Include essential job functions when sending medical certification forms to employees, so that the health care provider can provide relevant medical facts to help support an employee’s needs for FMLA.
• Create a separate form for ADAAA requests that focuses on accommodation requests, rather than trying to use one form to ask both FMLA and ADAAA questions.
• Consider relevant medical facts regarding essential job functions from the medical certification form as a starting point in the interactive process, but not as a way to substitute ADAAA for FMLA.
• Don’t be afraid to talk to employees regarding either FMLA or ADAAA. They’re just as concerned about the process as you are, and sometimes communicating in person can go a long way.
• Make sure you have defined processes for reviewing both FMLA and ADAAA requests. That can help eliminate issues caused by trying to comply with one law, while inadvertently interfering with the other.

It’s important to remember that although FMLA and ADAAA play in the same space, they are two very separate laws that require unique handling. Too often, companies try to expand the medical certification form to include as much information as possible for ADAAA, rather than just focusing on the FMLA information it was designed to collect. Implementing the best practices above can help achieve your compliance goals.

About guest blogger David Setzkorn

David Setzkorn, national practice leader – absence management, has led the strategic development of The Standard’s absence management offering since 2015. His experience includes consultation and development of absence management programs with large clients from implementation and training, to ongoing compliance with state and federal regulations. David is a graduate of Arizona State University with a Bachelor of Science in purchasing and logistics management, and an MBA with an emphasis in project management. He also holds a Chartered Property Casualty Underwriter (CPCU) designation along with multiple certifications in IT and Operational Management.