Although the courts have issued opinions substantially interpreting the application of the ADA, interpretation of the FMLA has been limited. The same fact pattern may give rise to claims under both acts. As discussed in this article, prosecuting and defending counsel should carefully consider the differences and similarities between the statutes.
Similarities and differences: FMLA?versus ADA
The Family and Medical Leave Act of 1993
(FMLA) had its 10th birthday on February 5, 2003. After more than a decade of litigation under the FMLA, it remains a potent weapon in the arsenals of plaintiffs’ employment lawyers and a source of concern to defense lawyers and human resources professionals. The U.S. Supreme Court has issued only three opinions interpreting the FMLA in any way; none of these materially limits its application. In fact, the Supreme Court recently expanded the application of the FMLA to the states, qua employers.
This presents a striking contrast to the Americans with Disabilities Act (ADA), the application of which has been significantly limited by the U.S. Supreme Court in recent years. The distinction between the FMLA and ADA is important because of the substantive overlap between the two laws and because the same fact patterns often give rise to claims for violations of both acts.
This article provides an overview of the structures of the ADA and the FMLA and compares and contrasts the two acts. It also discusses case law that applies the elements of both acts simultaneously.
The FMLA allows eligible employees to take reasonable unpaid leave for
- medical reasons;
- the birth or adoption of a child; and
- for the care of a child, spouse, or parent who has a serious health condition.
The FMLA is intended to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity. The FMLA entitles eligible employees to take up to twelve work weeks of unpaid leave annually for any of several reasons, including the onset of a “serious health condition” in an employee or the employee’s spouse, child, or parent. The FMLA creates a private right of action to seek both equitable relief and money damages “against any employer (including a public agency) in any federal or state court of competent jurisdiction,” should that employer “interfere with, restrain, or deny the exercise of” FMLA rights.
The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability. It provides that no covered employer may discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
A “qualified individual with a disability” is identified as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” In turn, the ADA defines a “disability” as
- a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
- a record of such an impairment; or
- regarded as having such an impairment.
Notably, these subsections have been the subject of significant court scrutiny and interpretation.
Overlap between the FMLA and ADA
The FMLA operates, in part, to expand certain rights available under the ADA. Although employees were potentially able to take leave for medical conditions as a reasonable accommodation under the ADA, this was limited in several material ways, as described below.
Essential functions requirement
Under the ADA, for an employee to require an employer to provide a reasonable accommodation, the employee must be capable of performing the “essential functions” of the job. This is not a prerequisite to leave under the FMLA.
Definition of disability The threshold inquiry with respect to the application of the ADA is whether the employee is “disabled” within the meaning of the ADA. A “disability” is defined by the ADA as an actual physical or mental impairment, a record of such an impairment, or being regarded as having such an impairment.
In contrast, to invoke coverage under the FMLA, an employee must show that he or she has a “serious health condition.”
Under 29 C.F.R. § 825.114(a)(2), a serious health condition entitling an employee to FMLA leave includes an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider. In turn, a “serious health condition involving continuing treatment by a health care provider” is defined to include:
- a period of incapacity (inability to work) due to the serious health condition, treatment for it, or recovery from the serious health condition) of more than three consecutive calendar days; and
- a subsequent treatment or period of incapacity relating to the same condition that also involves treatment two or more times by a health care provider.
The U.S. Supreme Court has applied the ADA definition of “disability” to hold that, for example, carpal tunnel syndrome is not a disability. However, the Supreme Court has not interpreted or applied the FMLA definition of “serious health condition.”
A court within the Tenth Circuit has applied the FMLA definition broadly, holding that an employee’s tendinitis should at least create a jury question with respect to whether it was a serious medical condition. Notably, that court was comfortable holding on summary judgment that the same tendinitis was not a disability as a matter of law under the ADA.
Reasonable accommodations When an employee requests leave—or any other reasonable accommodation—under the ADA, the employer has the defense of undue hardship to vitiate its obligation to provide the accommodation.
In other words, an employer need not make a reasonable accommodation that entails “significant difficulty or expense” when considered in light of various factors. The factors to be considered in determining whether an accommodation would cause an employer undue hardship are, among others:
- the nature and cost of the accommodation;
- the number of persons employed by the company;
- the financial resources of the company; and
- the impact of the accommodation on the operation of the company.
None of these factors come into play in the FMLA leave analysis. The risk of exposure for employers is exacerbated by the fact that an employee might not specifically denominate his or her leave request as an ADA reasonable accommodation or FMLA leave. The employee might simply advise the employer that, for example, he or she requires time off for medical treatment. Under the ADA, a variety of questions would come into play regarding the employer’s obligation to provide this leave as a reasonable accommodation. The employer would be able to consider whether the employee has, in the first instance, a disability within the meaning of the ADA. The employer also could examine whether, given the employee’s medical condition, he or she remains capable of performing the essential functions of the job. Finally, the employer would be able to assert the defense, if applicable, of undue hardship.
None of these issues, however, is relevant under the FMLA. Further, if the employee asks for such leave time as an accommodation under the ADA, and the employer denies the request based on one of its defenses available under the ADA, the employer still might be liable under the FMLA. Such liability could exist even if the employee never expressly requested the leave under the FMLA.
Conversely, if the leave is given as FMLA leave time and the employee also qualifies for leave as a reasonable accommodation under the ADA, the leave might not be subject to the time limitations of the FMLA. Thus, employers need to consider all leave requests under both the ADA and the FMLA.
Recent trends Federal trial courts often grant summary judgment on ADA claims but find that fact issues exist with respect to FMLA claims. Further, the federal courts of appeals seem more apt to reverse dismissals on FMLA claims than on ADA claims. This trend in the federal courts is exemplified in the Tenth Circuit by the case of Tate v. Farmland Industries, Inc. In that case, the plaintiff (Tate) was hired by the defendant, Farmland Industries, Inc. (Farmland) in 1987 to operate a commercial motor vehicle (CMV), hauling propane and similar products. In 1995, Tate began taking medication to control seizures associated with Lyme disease. In 1996 and 1997, Tate was examined by a Department of Transportation medical examiner who, notwithstanding Tate’s condition and medication, certified him as physically qualified to operate a CMV.
Subsequently, Tate’s condition and medication came to the attention of Farmland, which placed Tate on sick leave on January 2, 1998. While Tate was on sick leave, Farmland attempted to determine whether his condition and treatment would permit him to continue working for Farmland as a CMV operator. On January 30, 1998, Farmland answered this question in the negative and terminated Tate’s employment.
Tate sued under the ADA and FMLA in federal district court. The district court dismissed both claims before trial - the ADA cause of action on summary judgment and the FMLA cause of action for failure to state a claim. With respect to the ADA claim, the district court held that Tate was not disabled because he failed to establish he was substantially limited relative to a major life activity.
Regarding the FMLA claim, the district court held, inter alia, that Tate failed to allege that he requested FMLA benefits from Farmland. Tate appealed to the Tenth Circuit, which upheld the dismissal of the ADA claim but reversed the dismissal of the FMLA claim. As to the ADA claim, the Tenth Circuit held it did not have to reach the question of whether Tate was disabled. According to the court, Tate could not “meet the necessary job-related physical requirements to perform as a CMV operator in Defendant’s employ,” because he was not a “qualified individual with a disability” as defined in 42 U.S.C. § 12111(8). The court held that Tate’s seizure condition was dispositive in determining he was not qualified to work for Farmland by driving a CMV.
The Tenth Circuit held that fact issues existed with respect to Tate’s FMLA claim. This claim was based on the fact that Farmland terminated Tate 28 days into his sick leave, instead of allowing him the 12 weeks required by the FMLA. Notably, Tate never expressly requested FMLA leave. With respect to notice, the Tenth Circuit held:
"The FMLA . . . does not require a covered employee to specifically ask for FMLA benefits. An employee need not expressly assert rights under the FMLA or even mention the FMLA. . . . If the employer is on notice that the employee might qualify for FMLA benefits, the employer has a duty to notify the employee that FMLA coverage may apply. . . . Given Plaintiff’s allegation that Defendant placed him on sick leave, Plaintiff need not allege he provided Defendant with notice of his rights under the FMLA. (Citations omitted.)"
Farmland also argued on appeal that Tate’s condition was not a “serious health condition,” as required for FMLA coverage by 29 U.S.C. § 2612(a)(1)(D). The Tenth Circuit rejected this proposition as well, holding that “[t]he FMLA’s definition of a ‘serious health condition’ includes a ‘physical . . . condition that involves . . . continuing treatment by a healthcare provider.’ . . . We doubt that many employees placed on involuntary leave for health reasons would consider themselves unable to perform their job. Common sense tells us that this view does not render such employees unable to assert their leave rights under FMLA.”
The Farmland case starkly presents the overlap and contrasts between the ADA and FMLA. The facts of the case invoke issues a practitioner might identify more with the ADA than the FMLA at the outset, particularly in light of the fact that Tate never expressly requested FMLA leave. Nevertheless, the ADA claim was a non-starter on multiple grounds: in the district court because of the lack of a disability, and in the Tenth Circuit because Tate’s medical condition precluded him from being qualified for his job.
The FMLA claim, however, although eschewed by the district court, was allowed to move forward by the Tenth Circuit. Although the Tenth Circuit was affirming a Rule 12(b)(6) dismissal, the tenor of the opinion seems to indicate that sufficient fact issues existed to proceed to trial. Notably, although the district court had held, as a matter of law, that Tate did not have a “disability” for ADA purposes, the Tenth Circuit (without reaching the foregoing issue), held that Tate did have a “serious health condition” for FMLA purposes.
The Tate case thus indicates the potential for broader coverage of medical conditions generally under the FMLA. It also exemplifies that the same fact pattern giving rise to ADA claims may be
subject to summary judgment based on recent case law, but also may give rise to FMLA claims that are difficult to defeat.
The dearth of U.S. Supreme Court interpretation of the FMLA creates uncertainty and, in the near term, probably makes it more difficult for employers to obtain dismissal of FMLA claims prior to trial. It is likely that the Supreme Court will add more flesh to the bone of concepts such as the definition of “serious health condition” under the FMLA. In the meantime, attorneys must be careful to consider every fact pattern that implicates the ADA under the FMLA, and the reverse, to ensure protection under both statutes.