(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 [as
amended] 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. 103-3, at 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 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 due to their own serious health condition, 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 for planned medical treatment 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 FMLA's provision for temporary assignment
to a different alternative position would not apply. 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(e). 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) Under the Uniformed Services Employment and Reemployment Rights
Act of 1994, 38 U.S.C. 4301-4333 (USERRA), veterans are entitled to
receive all rights and benefits of employment that they would have
obtained if they had been continuously employed. Therefore, under
USERRA, a returning service member would be eligible for FMLA leave if
the months and hours that he or she would have worked for the civilian
employer during the period of military service, combined with the
months employed and the hours actually worked, meet the FMLA
eligibility threshold of 12 months and 1,250 hours of employment. See
Sec. 825.110(b)(2)(i) and (c)(2).
(h) 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; 73 FR 68110, Nov. 17, 2008]
