Issue

FMLA

ADA

WC

What number of

employees must be

employed?

Private sector: 50 or more

employees.

Public agency regardless of number of employees

Public or private elementary or secondary school regardless of number of employees

All employers including state and local government with 15 or more

employees.

One or more

employees.

Does the act apply to

applicants for

employment?

No. An “eligible employee” means someone who has been employed by the employer for at least 12 months and at least 1,250 hours of service during the previous 12-month period.

Yes.

Generally, no,

although individuals

injured during tryouts

may be covered.

To whom is the act

applicable?

May include absences

for the employee to care for family members.

Only the worker is

included.

Only the worker is

included, except that

survivors may receive

indemnity benefits if worker suffered a fatal work-related injury.

Who is covered by

the act?

It covers employees

with serious health

conditions, those who

need to care for a

family member, those

who have

experienced the birth

of a child, those

who will be caring

for an adopted or foster

child, and family members

taking care of covered

service members.

The ADA applies to

qualified employees

and job applicants

who suffer from, have a

record of, or are regarded as having a disability that constitutes a physical or mental impairment which substantially limits one or more major life activities.

The state statutes

generally apply to

individuals who

suffer accidents or

illnesses which arise

out of and in the

course of the

employment.

How is a serious health condition/disability

defined?

A “serious health

condition” may

encompass any

illness, injury,

impairment, physical or

mental condition that

involves inpatient

care or continuing

treatment by a health

care provider.

A physical or mental impairment that substantially limits one or more substantial life activities. It does not apply to transitory or minor impairments.

State statutes

generally include

physical or mental

injuries or illnesses

which were caused by the

employment.

What is the primary

obligation of the

employer under the

act?

To grant unpaid leave

to employee.

To accommodate the

employee, and not

discriminate because

of disability.

To pay statutory indemnity

benefits and medical

expenses to or on behalf of

the injured worker, and

possibly to accommodate

the worker or restore him or

her to employment.

Can the employer

assert undue hardship

as a defense?

Yes, if disabled employee has exhausted leave under FMLA.

Yes.

Generally, yes,

although it is not

expressed in those

terms in statutes.

May the employer

transfer the

employee?

The employer may

temporarily transfer the

employee for

intermittent or reduced leave

so long as the pay and

benefits are equivalent and the new position better accommodates recurring periods of leave than the employee's regular position.

An employer may reassign

an employee who is no

longer able to perform the

essential functions of his or

her original position even

with reasonable

accommodations.

The employer is generally

able to transfer the

employee so long as it is

reasonable. The ability of

the employer to transfer

may be governed by specific

statutory vocational

priorities.

Must the employee

be returned to

equivalent pay and

benefits?

Yes.

Yes, unless no job

with equivalent pay and

benefits is available.

Not necessarily.

If employee is returned to

lower pay, loss of earning

power benefits may

be owed, depending on

nature of injury.

Is the employer

mandated to provide

requested leave?

Employer must provide

leave to eligible employee

even if accommodations

exist to keep employee at

work.

Employer may deny request

for leave and provide

alternative reasonable

accommodation that allows

employee to remain on the

job.

Employer may deny a

request for leave and

provide alternative or

transitional duty for

the employee.

If an employee

wishes to return to

work after medical

leave, may he or she

do so?

Yes, unless leave didn't

qualify under FMLA, job

was eliminated for other

reasons, employee cannot

perform an essential

function of job because of

physical or mental

condition, or employee a

“key” employee whose

return would cause

substantial and grievous

economic injury to employer.

Notice must be given if

employee not permitted to

return.

Yes, unless the employer

demonstrates that holding

the job open would impose

an undue hardship.

Whether the

employer may reject

employee's request to

return is dependent upon

state statutes governing

workers comp cases and

whether the employment is

“at will”. Vocational

priorities may mandate

granting the employee's

request to return.

Must benefits be

continued while the

employee is off

work?

Group health coverage must

be continued throughout

the leave.

Employer must provide

coverage for employee

taking leave or working part-time only if employer also provides coverage for other employees in the same leave or part-time status.

Dependent on state

statutes.

What type of medical

inquiries may an

employer make?

Employers can ask for

annual medical certifications for conditions that last over a year. To have a “chronic condition” that qualifies for FMLA, employees have to certify that they visited a doctor at least twice a year for the condition.

Employers may

inquire as to medical

conditions so long as

the inquiries are job-related and consistent with business

necessity.

Generally an

employer has access

to all medical records

relating to the current

condition and may

have access to records of

prior conditions if it can

justify the need for them.

May the employer

obtain its own

opinion as to the

nature and extent of

the employee's

condition?

Yes. The employer

may obtain a second

opinion. A binding

third opinion may

also be used. Exams

are at the employer's

expense.

The employer may

perform a post-offer

physical examination

so long as it is related

to the disability and

is consistent with

business necessity.

In most jurisdictions, the

employer has a right to have

a “defense examination”

performed upon an

injured worker.

Are there consequences

if employee doesn't

submit to an examination

scheduled by the employer?

The employee may

jeopardize any claim

under the FMLA.

The employee may

jeopardize any claim

under the ADA.

The employee may

suffer reduced or

discontinued indemnity or

medical benefits.

Can return to work

physical examinations

be performed?

Yes. Such examinations

are limited to the serious

medical condition for

which the leave is

sought. Employers may

require “fitness-for-duty”

tests if doing the job raises

a significant risk of harm to

themselves or others.

Yes. Such

examinations must be

job-related and

consistent with

business necessity.

Generally, an employer has

a right to have a “defense

examination” performed at

occasional intervals.

Does the act mandate

that medical records

be kept

confidentially?

Medical records created for

FMLA are to be maintained

as confidential medical

records separate from usual

personnel files. If ADA also

applicable, records

are to be maintained in

conformance with ADA

confidentiality requirements.

To protect employee's

privacy, direct supervisors

are prohibited from getting

an employee's medical

information when FMLA

certification is needed.

Strict confidentiality

of medical records is

required.

Confidentiality

provisions vary from

state to state.

May an action be

brought against a co-

employee for

violating the act?

An action may be

brought against those who

act directly or indirectly

in the interest of the

employer. Such individual

liability for violations of the

FMLA may be assigned to

corporate officers, managers, or supervisors.

Although there is a split in

decisions as to whether

the ADA provides for

individual liability, the

majority position is that

there is no individual liability under the Act.

The extent to which

exclusive remedy

provisions bar suits against

co-employees varies from

state to state.

May intermittent

leave or a reduced

schedule be taken by

the employee?

Yes, if leave requested is

due to a serious health

condition of employee or

qualified family member of

employee. Such leave may

not be taken for birth or

adoption of a child, unless

employee and employer

agree otherwise.

Yes, as a reasonable

accommodation.

While intermittent

leave or a reduced

schedule may not be

mandated, it may be

used as a form of

light duty designed to

restore the employee

to full duty.

What must the

employee show in

order to be granted

intermittent or

reduced leave?

That the employee or

a qualified family

member suffers from a

serious health

condition for which

such leave is

medically necessary.

That such leave will

enable the employee

to perform the

essential functions of

the job.

The employer may

wish to offer such

leave to the employee

to reduce its exposure

for temporary total

disability or

vocational rehabilitation

benefits.

What is the duration

of the leave?

During a 12-month period,; 26 weeks unpaid leave for relatives

of active duty military service members with a serious injury or illness. For all other reasons, 12 weeks of unpaid leave.

Qualifying Exigency Leave entitles employees to take up to 12 weeks in a 12-month period for a qualifying exigency related to the foreign deployment of the employee's spouse, son, daughter, or parent.

Unlimited, but bound

by the concept of

“reasonable”

accommodations.

State statutes may

vary.

Must the employee

take the initiative in

reporting a qualifying

event or condition?

Employee must inform the

employer that there is

a serious health

condition or other

reason for which

leave is necessary.

The employee does not

need to elaborate as

to details. With exceptions, the code generally requires 30 days' notice when feasible.

Generally, the

employee must

inform the employer

of the disability or

must request a

reasonable

accommodation.

Employee must

inform employer of work-

related accidents. In limited

situations, employer may be

obligated to inquire

as to whether a condition is

related to the employment.