Starting and building up your own business is an exhilarating experience. The trick is to stay focused on the core issues. Which means become sidetracked by necessary but potentially distracting employer responsibilities like FMLA compliance and ADA compliance. You can avoid getting bogged down by learning the basics of the Family and Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA). That way you can address issues proactively and stay ahead of the game.
The federal government enacted The Americans with Disabilities Act in 1990. Three years later the government enacted the Family and Medical Leave Act. The scope of ADA compliance extends beyond the employment relationship, but only employee rights under the ADA are discussed here.
The ADA’s employment provisions, applicable to employers with at least 15 employees, seek to prevent employers from discriminating against employees with disabilities in any facet of the employment. Those include how employees are recruited and hired, fired, laid off, paid, trained, assigned tasks, promoted, granted leave, employee benefits, and “all other employment-related activities,” according to the Equal Employment Opportunity Commission (EEOC), the federal agency with primary responsibility for enforcing the law.
ADA compliance first requires knowing how the law defines disability. The law involves general principles, not a list of conditions. It basically boils down to this. An individual is deemed to have a disability if they:
- Has a physical or mental impairment that substantially limits a major life activity
- Has a record of a substantial impairment
- Is regarded as having a substantially limiting impairment
As the saying goes, the devil is in the details. For example, what does “is regarded as having” mean? The answer, according to the EEOC: The individual “is subject to an action prohibited by the ADA based on a condition that is not transitory or minor.”
What about the meaning of “major life activity?” They include seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning and working. The government tightened up the ADA in 2008. At this time it was made clear that the fact that a person with some disabilities can take steps to mitigate them (e.g. with medication) does not mean the person is without a disability.
For employers, the crux of the ADA often comes down to the the terms “reasonable accommodation” and “undue hardship.”
ADA compliance doesn’t require you to hire, promote, and so on, every person with a disability without regard to whether it prevents the person from actually performing the job. But you are required to make a reasonable accommodation to enable the person to function effectively despite the disability, without causing undue hardship to your business.
ADA Reasonable Accommodation
Examples of reasonable accommodations include:
- installing a wheelchair ramp
- altering a workspace
- job restructuring
- furnishing training materials in Braille
- providing a sign language interpreter,
- possibly “providing a quieter workspace or making other changes to reduce noisy distractions for someone with a mental disability”
However, if your business is small, those accommodations might bankrupt you. So, the general standard for “undue hardship” offered by the EEOC would be an accommodation that “would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.”
You can find the more nuanced meaning of these ADA terms in detailed regulations and court rulings. The same applies to FMLA compliance, a federal law that applies to employers with at least 50 employees. In a nutshell, the law requires those employers to provide up to 12 weeks of unpaid “job-protected” leave to eligible employees within a 12-month period. And, in some cases involving military service members, you may have to provide up to 26 weeks. An employee can take the leave all at once, or in small segments adding up to the 12-week maximum.
FMLA Job-protected Leave
Job-protected means the employee can return from leave—not necessarily to the same job, but at least a comparable one.
FMLA lets employers restrict leave eligibility to employees who have worked for you for at least 12 months. Those 12 months don’t have to be consecutive. However, you can require the employee to have logged at least 1,250 hours of service during the prior 12-month period.
If it’s built into your regular leave policy, you generally can have an employee’s FMLA leave time run concurrently with the employee’s accrued paid leave. This is the case whether it’s vacation or sick leave time. That would prevent an employee from adding accrued paid time off to the maximum of 12 weeks unpaid FMLA leave.
Also, the 50-plus employee threshold for being subject to FMLA compliance gives some (temporarily) larger employers a break. Your headcount could exceed 50. But, only if you had a spike in your payroll pushing you above the 50-employee threshold due to seasonal staffing.
FMLA Leave Categories
Assuming you are subject to the FMLA, the question arises: What reasons for the leave request are covered by the law? Here’s a rundown supplied by the Department of Labor:
- The birth of a son or daughter or placement of a son or daughter with the employee for adoption
- To care for a spouse, son, daughter, or parent who has a serious health condition
- For a serious health condition that makes the employee unable to perform the essential functions of his or her job
- For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status
That covers a lot of territory. However, some FMLA compliance requirements apply to employees as well. For example, they can’t simply spring a FMLA leave request on you and waltz out the door. They need to satisfy the same notice requirements you have in place for other kinds of leave. An employee may be required to provide you with a 30-day notice if the need for their leave is foreseeable. An example of a foreseeable need is the birth of a child.
Also, if you want confirmation that the condition (such as a serious illness) giving rise to the leave request really exists, you can request a medical certification, including a second and third opinion (those two at your own expense) if you’re skeptical about the first one. You can also have the employee periodically re-certify the condition.
Maintain Health Benefits
If you provide health benefits to your employees, you must keep an employee out on FMLA leave on your plan under the same terms as other employees. In that situation it would be inaccurate to call FMLA leave “unpaid”. Why? Because you’ll still incur the cost of the share of the employee’s health benefit that you were paying. However, the employee must continue to pay the employee share.
Finally, as noted, you must give the employee his/her former job, or an equivalent one in duties and pay. An equivalent job, according to the Department of Labor, is one that’s “virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions including shift and location.”
However, “key” employees, defined as salaried workers among the highest 10 percent of your workforce within a 75-mile radius, don’t have to be given their old job (or an equivalent one) back.
By keeping this FMLA / ADA overview in mind, you’ll be better equipped to begin the process of addressing disability, family and medical leave issues as they arise. Those laws have been on the books long enough for a mountain of regulations and court decisions to pile up addressing the finer points of the law. Consult with an expert to make sure you’ve covered all your bases. And, of course, avoid getting sidetracked from the core priorities of your business.