(a) Nothing in FMLA modifies or affects any Federal or State law
prohibiting discrimination on the basis of race, religion, color,
national origin, sex, age, or disability (e.g., Title VII of the Civil
Rights Act of 1964, as amended by the Pregnancy Discrimination Act).
FMLA's legislative history explains that FMLA is ``not intended to
modify or affect the Rehabilitation Act of 1973, as amended, the
regulations concerning employment which have been promulgated pursuant
to that statute, or the Americans with Disabilities Act of 1990, or the
regulations issued under that act. Thus, the leave provisions of the
[FMLA] are wholly distinct from the reasonable accommodation obligations
of employers covered under the [ADA], employers who receive Federal
financial assistance, employers who contract with the Federal
government, or the Federal government itself. The purpose of the FMLA is
to make leave available to eligible employees and employers within its
coverage, and not to limit already existing rights and protection.'' S.
Rep. No. 3, 103d Cong., 1st Sess. 38 (1993). An employer must therefore
provide leave under whichever statutory provision provides the greater
rights to employees. When an employer violates both FMLA and a
discrimination law, an employee may be able to recover under either or
both statutes (double relief may not be awarded for the same loss; when
remedies coincide a claimant may be allowed to utilize whichever avenue
of relief is desired (Laffey v. Northwest Airlines, Inc., 567 F.2d 429,
445 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086 (1978))).
(b) If an employee is a qualified individual with a disability
within the meaning of the Americans with Disabilities Act (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. ADA's ``disability'' and
FMLA's ``serious health condition'' are different concepts, and must be
analyzed separately. FMLA entitles eligible employees to 12 weeks of
leave in any 12-month period, whereas the ADA allows an indeterminate
amount of leave, barring undue hardship, as a reasonable accommodation.
FMLA requires employers to maintain employees' group health plan
coverage during FMLA leave on the same conditions as coverage would have
been provided if the employee had been continuously employed during the
leave period, whereas ADA does not require maintenance of health
insurance unless other employees receive health insurance during leave
under the same circumstances.
(c)(1) A reasonable accommodation under the ADA might be
accomplished
by providing an individual with a disability with a part-time job with
no health benefits, assuming the employer did not ordinarily provide
health insurance for part-time employees. However, FMLA would permit an
employee to work a reduced leave schedule until the equivalent of 12
workweeks of leave were used, with group health benefits maintained
during this period. FMLA permits an employer to temporarily transfer an
employee who is taking leave intermittently or on a reduced leave
schedule to an alternative position, whereas the ADA allows an
accommodation of reassignment to an equivalent, vacant position only if
the employee cannot perform the essential functions of the employee's
present position and an accommodation is not possible in the employee's
present position, or an accommodation in the employee's present position
would cause an undue hardship. The examples in the following paragraphs
of this section demonstrate how the two laws would interact with respect
to a qualified individual with a disability.
(2) A qualified individual with a disability who is also an
``eligible employee'' entitled to FMLA leave requests 10 weeks of
medical leave as a reasonable accommodation, which the employer grants
because it is not an undue hardship. The employer advises the employee
that the 10 weeks of leave is also being designated as FMLA leave and
will count towards the employee's FMLA leave entitlement. This
designation does not prevent the parties from also treating the leave as
a reasonable accommodation and reinstating the employee into the same
job, as required by the ADA, rather than an equivalent position under
FMLA, if that is the greater right available to the employee. At the
same time, the employee would be entitled under FMLA to have the
employer maintain group health plan coverage during the leave, as that
requirement provides the greater right to the employee.
(3) If the same employee needed to work part-time (a reduced leave
schedule) after returning to his or her same job, the employee would
still be entitled under FMLA to have group health plan coverage
maintained for the remainder of the two-week equivalent of FMLA leave
entitlement, notwithstanding an employer policy that part-time employees
do not receive health insurance. This employee would be entitled under
the ADA to reasonable accommodations to enable the employee to perform
the essential functions of the part-time position. In addition, because
the employee is working a part-time schedule as a reasonable
accommodation, the employee would be shielded from FMLA's provision for
temporary assignment to a different alternative position. Once the
employee has exhausted his or her remaining FMLA leave entitlement while
working the reduced (part-time) schedule, if the employee is a qualified
individual with a disability, and if the employee is unable to return to
the same full-time position at that time, the employee might continue to
work part-time as a reasonable accommodation, barring undue hardship;
the employee would then be entitled to only those employment benefits
ordinarily provided by the employer to part-time employees.
(4) At the end of the FMLA leave entitlement, an employer is
required under FMLA to reinstate the employee in the same or an
equivalent position, with equivalent pay and benefits, to that which the
employee held when leave commenced. The employer's FMLA obligations
would be satisfied if the employer offered the employee an equivalent
full-time position. If the employee were unable to perform the essential
functions of that equivalent position even with reasonable
accommodation, because of a disability, the ADA may require the employer
to make a reasonable accommodation at that time by allowing the employee
to work part-time or by reassigning the employee to a vacant position,
barring undue hardship.
(d)(1) If FMLA entitles an employee to leave, an employer may not,
in lieu of FMLA leave entitlement, require an employee to take a job
with a reasonable accommodation. However, ADA may require that an
employer offer an employee the opportunity to take such a position. An
employer may not change the essential functions of the job in order to
deny FMLA leave. See Sec. 825.220(b).
(2) An employee may be on a workers' compensation absence due to an
on-the-job injury or illness which also qualifies as a serious health
condition under FMLA. The workers' compensation absence and FMLA leave
may run concurrently (subject to proper notice and designation by the
employer). At some point the health care provider providing medical care
pursuant to the workers' compensation injury may certify the employee is
able to return to work in a ``light duty'' position. If the employer
offers such a position, the employee is permitted but not required to
accept the position (see Sec. 825.220(d)). As a result, the employee may
no longer qualify for payments from the workers' compensation benefit
plan, but the employee is entitled to continue on unpaid FMLA leave
either until the employee is able to return to the same or equivalent
job the employee left or until the 12-week FMLA leave entitlement is
exhausted. See Sec. 825.207(d)(2). If the employee returning from the
workers' compensation injury is a qualified individual with a
disability, he or she will have rights under the ADA.
(e) If an employer requires certifications of an employee's fitness
for duty to return to work, as permitted by FMLA under a uniform policy,
it must comply with the ADA requirement that a fitness for duty physical
be job-related and consistent with business necessity.
(f) Under Title VII of the Civil Rights Act of 1964, as amended by
the Pregnancy Discrimination Act, an employer should provide the same
benefits for women who are pregnant as the employer provides to other
employees with short-term disabilities. Because Title VII does not
require employees to be employed for a certain period of time to be
protected, an employee employed for less than 12 months by the employer
(and, therefore, not an ``eligible'' employee under FMLA) may not be
denied maternity leave if the employer normally provides short-term
disability benefits to employees with the same tenure who are
experiencing other short-term disabilities.
(g) For further information on Federal antidiscrimination laws,
including Title VII and the ADA, individuals are encouraged to contact
the nearest office of the U.S. Equal Employment Opportunity Commission.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
